Dutch court of first instance informally applies administrative law measures in a civil procurement law case

Background to the case

On 21 April 2023, the municipality of Texel held a European tender for engineering services for projects. It wished to award a framework agreement to the tenderer with the economically most advantageous bid.

On 13 June 2023 the applicant (BVE Infra), who is active in the field of civil engineering, was given notice by the municipality that it did not win the tender and that the municipality intended to award the contract to another tenderer. Within the standstill period, BVE brought proceedings before the Dutch civil court of first instance, requesting, in short, the Court of first instance to order the municipality to reassess the bids submitted and, as a last resort, to order the municipality to cease the tender procedure.

The provisional award decision was withdrawn 11 days before the hearing. The reason was that the municipality wanted to give better reasons for the award decision. Then, in spite of the withdrawal of the provisional award decision, the hearing went ahead. At the hearing, it was decided to postpone the pro forma proceedings pending the new award decision in order to determine if it still wished to continue the interim proceedings.

Ten days after the new award decision was taken on 1 September 2023, BVE contacted the Court of first instance that it wished to continue the preliminary relief proceedings and a new hearing date was scheduled. BVE did not file new proceedings against the new award decision. This prompted the municipality to ask the Court of first instance to declare BVE Infra inadmissible.

Ruling

The Court of first instance did not go along with this. It found that the civil interim relief procedure in public procurement cases is materially an administrative law case and, that it is therefore justified to, informally, apply an administrative law measure, i.e., the bestuurlijke lus. Consequently, the Court of first instance did not order the municipality to reassess or cease the tender procedure, but rather, by postponing the hearing until a further date, it gave the municipality the possibility to elaborate on the reasoning given in the new award decision.

Regardless of the extraordinary approach by the Court of first instance the outcome is rather ordinary. The Court of first instance did not see any reason to order the municipality of Texel to reassess the tenders, nor to redo the tender procedure all together.

Dutch procedural law and conclusion

Unlike most jurisdictions in the European Union, the Dutch legislator transposed EU public procurement law (Directives 2014/23/EU, 2014/24/EU and 2014/25/EU) into civil law. Al proceedings deriving from tenders therefore have to be brought before civil courts. By definition the civil courts are bound by the principles of civil law and can only apply civil law measures. That reasoning used the Court goes against the fundamentals of Dutch public procurement law which makes it objectionable. This is especially so since the same effect can be achieved by using purely civil law measures.
Although the judgment in hand is very interesting it is unlikely to create a precedent. The value attributed to judgments in preliminary rulings by Court of first instance is limited.