Tendering rules

Do you want to carry out a contract for a Dutch government organisation? Then you must take part in a tendering procedure. Public organisations announce a contract and companies that want to bid fo the contract submit a tender. Public authorities in the European Union (EU) must keep to European tendering rules. 

Which contracts require a tendering procedure? 

Public authorities in the EU must put out a tender if they want to procure supplies, services, and works. For example for: 

• office equipment and supplies, such as for interior decorating, laptops, and smartphones (goods) 
• cleaning and security services (services)
• construction of roads or offices (work) 

Which organisations must put out a tender? 

Public authorities in the EU must put out a tender if they wish to purchase goods, services, or works. This is laid down in the European public procurement directives. In the Netherlands, these rules are transposed into the Public Procurement Act 2012 (Aanbestedingswet 2012). The act applies to all public contracts put out by: 

• national government (ministries), municipalities, provinces, and water authorities 
• public institutions, such as universities and schools
• companies in specific sectors, mainly utility operators such as water and energy companies, and public transport companies such as NS and Schiphol Airport
• partnerships which include a public authority or a public law body.

Basic rules for tendering 

The government must keep to a number of basic rules (principles) when issuing a tender. These principles are: 

• government organisations cannot treat participants in the procedure differently based on their business location (non-discrimination principle) 
• government organisations must treat all participants objectively and equally, and offer them the same information (equal treatment principle) 
• before the start of the procedure it must be clear to everyone how the tendering process works and what the requirements are (transparency principle)
• the requirements in a tender must be proportionate to the type and size of the contract (proportionality principle) 

Participating in a tender 

If you want to participate in a tender, there are different rules depending on the value of the contract: 

• a national public or private procurement of contracts below a certain threshold. You can find these on TenderNED (in Dutch). 
• contracts above this threshold are open to businesses from other EU countries (European tender). You can find European tenders on the EU platform TED. 

There are different types of tendering procedures which governments can use. For more information on the different types, how to prepare, and how to register for a tender see also the Checklist for participating in national and European tenders. 

Complaint about a tender 

Do you think you have been treated unfairly? Or do you think the basic principles for tendering were otherwise not applied correctly during the procedure? You can ask a question or submit a proposal while the procedure is ongoing. The contracting authority must respond to this in the summary of additional information and changes (Nota van Inlichtingen). If this does not satisfy your complaint, you can submit a formal complaint to them. 

If you are not satisfied with the handling of your formal complaint, you can submit a complaint to the Committee of Tendering Experts (Commissie van Aanbestedingsexperts, CvA, in Dutch). This Committee then gives an independent, non-binding advice. The contracting public authority may also submit a complaint about participating companies. 

Obstruction from outside the EU 

Do you compete in a tender in a non-EU country and do you have difficulty accessing the procurement market there? For example because there are specific rules which make it more difficult, or prevent you from winning the contract? You can submit a complaint to the European Commission (EC) using the International Procurement Instrument (IPI) complaints form.

If you have filed a complaint, the EC will investigate your claim and may impose IPI measures on companies from the country blocking your access. These IPI measures are published in the Official Journal of the European Union. Companies with an IPI measure may experience more difficulty if they want to participate in European tendering bids. In the worst case they can be excluded from European tenders. 

Report foreign government subsidies 

Do you want to participate in a large European tender with a contract value of at least €250 million? You must report any government subsidy you, your main subcontractors, or your main suppliers have received in the past 3 years. You report when and how much subsidy you received, in accordance with the Foreign Subsidies Regulation (FSR). The contracting authority forwards your report to the European Commission (EC). 

The EC investigates if you have an unfair advantage which could distort the European internal market (market distortion). If so, the EC can forbid the contracting authority from awarding you the contract.