Tender deadlines during the COVID-19 outbreak in the Netherlands

By Janneke Kohlen, Pauline Kuipers

04-2020

Because of the tackling of the Coronavirus (COVID-19) much of daily life has been changed with great consequences for people and companies. Many people work from home for the time being, restaurants are closed for visitors and (large) events can no longer take place. The world of public procurement is also affected by the Corona crisis, but no central solution has (yet) been devised for this. In this contribution, we would like to briefly consider the consequences of the Corona crisis for current and upcoming tendering procedures.

Deadlines

It is important for tenderers to check whether they can still meet the tender deadlines. Due to the Corona crisis, it can be difficult for bidders to prepare a tender within the regular deadlines, for example due to the fact that many employees work from home and are therefore no longer able to consult with colleagues quickly and easily. We advise tenderers to timely alarm the contracting authority and request an extension of the term if necessary.

Contracting authorities can extend the periods at their own discretion, even without a request from (potential) tenderers. After all, the terms stipulated in the Dutch Procurement Act are almost all minimum terms, whereby it must be critically considered for each contract whether the set terms are realistic and proportionate with respect to the actions to be taken for the tender.

In the case of ongoing tenders, the contracting authorities have probably not yet been able to take the consequences of the Corona crisis into account. During a crisis such as this one, standard deadlines may no longer be realistic and proportionate, with the result that tenderers are prevented from submitting an appropriate tender. Contracting authorities should also take their responsibility in this respect.

Documents required

The European Single Procurement Document (ESPD), the standard form used in many Dutch and European tendering procedures, requires a variety of supporting documents. These documents are regularly requested from authorities by tenderers because many contracting authorities want official documents that are not older than six months. Because of the Corona crisis, many of the authorities involved are less responsive or unavailable. The question now is whether it is realistic to expect the authorities concerned to send the necessary documentary evidence in good time. Think, for example, of the Declaration of Good Conduct for Tendering (of Justis), the Certificate of Non-Bankruptcy (of the court) or the Declaration of Payment Conduct for Tax Compliance (of the Tax Administration). So far, we have succeeded in getting these documents on time for our clients, but at the moment there seems to be no guarantee that they (can) be provided in time by the relevant authorities. For example, the courts are closed, and a lot of work is done remotely.

In addition, in certain (large) tender procedures, for example, a signed tender, a wet signature of a director or a wet signature under certain declarations is also requested. In view of the measures taken against the Coronavirus, it is also uncertain whether the signatures can be arranged in time.

Advice PIANOo

PIANOo (Dutch Centre of Expertise for Procurement) advises contracting authorities to take a critical look at ongoing tenders and to check whether the Corona crisis is affecting their procurement procedures, which for example means to check whether the deadlines set require an extension. PIANOo realises that working from home can make the preparation of an application or tender more complicated because (especially in large tenders) the preparation of a tender is often a team effort.

Because many tenders are conducted digitally, there is in principle no obstacle to registration and tendering.

PIANOo calls on contracting authorities to extend the deadlines set if necessary and to inform interested parties accordingly. This also applies to other adjustments to the (assessment) procedure. PIANOo stresses that everyone must be provided with the same information at the same time.

Contracting authorities dealing with European tenders or national procedures with prior publication require a rectification in order to extend the deadlines. This can be done via TenderNed or one of the other procurement systems.

Disagreeing with proposed award decision

Under normal circumstances, a dissatisfied tenderer may initiate legal proceedings against an intended award decision within the standstill period of 20 calendar days. Because of the Corona crisis this seems to be difficult. Courts, tribunals and special colleges have closed their doors until (in any case) 6 April 2020, which means that the handling of cases will come to a standstill until that time. Only certain very urgent cases will be dealt with.

There is a good chance that interim measures in a tender procedure will not be dealt with as a result. For interim measures that do qualify as urgent, the normal hearing can temporarily be replaced by a digital hearing by e-mail (based on strict instructions from the Court in interim measures). If the judge still has questions after this communication, a conference call can be organized. If, in the judge's opinion, an oral hearing is absolutely necessary, the hearing will probably be scheduled after the measures related to the Corona virus have been lifted. This does not exclude the possibility that the judge may decide that in certain cases there is an urgent need to schedule a hearing earlier. Our estimation is that this will not be the case for public procurement cases. For more information on the consequences for dispute resolution, we refer you to an article written by our colleagues on this subject (in Dutch): COVID 19: consequences for dispute resolution.

Finally, the contracting authority has the option of extending or suspending the standstill period of 20 calendar days, which is also a minimum period.

For questions about and assistance with your (ongoing) procurement procedures, please contact our procurement experts Janneke Kohlen and Pauline Kuipers.

Last reviewed: 02 April 2020