The following legislation regulates the procurement of government contracts in the Netherlands:

• the Public Procurement Act 2012;
• the Public Procurement Act for contracts in the fields of defence and security;
• the Proportionality Guide (governmental decree);
• the Works Procurement Regulations 2016 (ARW 2016); and
• the Special Sectors Regulations (ARN 2016).

This legislation is based on EU directives.

The procurement regulation applies to the following contracting authorities:

• the State;
• regional or local authorities;
• bodies governed by public law; or
• associations formed by one or more such authorities or bodies governed by public law.

Whether or not entities in the last category are contracting authorities depends on the following:

• whether they are established for the specific purpose of meeting needs in the general interest;
• whether or not they have an industrial or commercial character; and
• whether or not they are financed, for the most part, by the State or regional or local authorities, or by other bodies governed by public law, or are subject to management supervision by those authorities or bodies, or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the state, by regional or local authorities, or by other bodies governed by public law.

Private companies can also be subject to procurement regulations if they choose to purchase works, services or supplies from interested economic operators and follow a tender procedure. However, private companies are free to explicitly state that procurement law and the basic principles of public procurement (non-discrimination, equal treatment, transparency and proportionality) are not applicable.

Healthcare insurers are not subject to procurement regulation, but are obliged to observe the principle of transparency insofar as it concerns their healthcare procurement. Offering healthcare insurance to consumers is not subject to the procurement regulation.

According to the Dutch State, housing associations are not "contracting authorities" under the Public Procurement Act 2012 so are not subject to procurement regulation. However, the European Commission has initiated infringement proceedings against the Dutch government, stating that housing associations should be considered contracting authorities and therefore be bound to tender procedures in accordance with the applicable procurement law regulations. The European Court of Justice is yet to issue its ruling on this issue.

If a contracting authority wants to purchase a work, service or supply from a market participant, the contract that is concluded between the contracting authority and the market participant is subject to procurement regulation.

Based on the Public Procurement Act 2012, this only applies to contracts that have a value above the European minimum value thresholds, which are as follows:

• for works – EUR5,382,000 (for the State as well as regional and local authorities, and the defence and security sector);
• for services, supplies and design contests – EUR140,000 for the State and EUR215,000 for regional and local authorities and bodies governed by public law;
• for concession contracts – EUR5,382,000;
• for public service contracts for social and other specific services – EUR750,000; and
• for military public contracts for services and supplies – EUR431,000.

Under these thresholds, the Works Procurement Regulations 2016 (ARW 2016) and the Proportionality Guide are applicable.

The Proportionality Guide states the value at which the national procedure, in principle, has to be applied by the contracting authority. For example, for services and supplies by the State, a closed tender (one on one) is only suggested when the contract value is below EUR30,000, while a private tender with only three interested parties is suggested at a contract value between EUR30,000 and EUR100,000.

It is not mandatory to use the thresholds in the Proportionality Guide. The type of national procedure adopted also depends on the following aspects:

• the transaction costs for the contracting authority and the tenderers;
• the number of potential tenderers;
• the desired end result;
• the complexity of the contract; and
• the type of contract and the character of the market.

However, if the contracting authority chooses to apply a procedure other than suggested in the Guide, this must be explained, under the so-called comply or explain principle.

Finally, a contracting authority can be subject to its own purchasing policy.

Tender procedures in the Netherlands are open to any interested economic operator, no matter the jurisdiction. However, if the contract value is lower than the European threshold, a contracting authority is allowed to select a few economic operators, at its discretion. In that case, it is possible for only Dutch economic operators to be invited to participate in a tender. However, the contracting authority is obliged to base its choice of which economic operators to invite on objective criteria.

The key obligations for a contracting authority under the procurement legislation are based on the basic principles of non-discrimination, equal treatment, transparency and proportionality, which need to be taken into account during the preparation of the tender procedure and the performance of the tender (procedure).

On the basis of the principle of equal treatment, for example, the contracting authorities may not favour or exclude SMEs in tender procedures, nor raise difficulties for economic operators in submitting a tender, which would breach the principles of non-discrimination and proportionality.

On the basis of the principle of transparency, it is for the contracting authority to define, in the notice of invitation to tender, the subject matter of the award procedure and the conditions governing it. The contracting authority has to adhere strictly to the conditions it has laid down in that notice and which have prompted the tenderers to take part in the procedure and submit a particular tender. In certain circumstances, failure to do so may lead to intervention in the contract concluded and to the imposition of an order, as a breach of the principle of equal treatment. In addition, based on the principle of transparency, the interim adjustment or removal of a requirement is not allowed.

Economic operators are bound by the following key obligations during the tender process.

• Tender offers must comply with the fundamental requirements and technical requirements mentioned in the tender documents. Non-compliant offers will be eliminated and must not be taken into account in the comparison with other tender offers. The contracting authority is allowed to eliminate tenders that have not obtained at least a predetermined minimum of points for qualitative award criteria.
• Tender offers with conditional arrangements are, in principle, non-compliant with the specifications: conditions are only permitted if the tender documents expressly state that a deviation from the specifications is allowed.

Prior to concluding a tender contract, the contracting authority must publish a variety of messages via the publication module of TenderNed (www.tenderned.nl). The contracting authority is obliged to use this publication module and the standard forms on TenderNed. Herein, the contracting authority can publish (pre)announcements, notifications of award decisions, rectifications and notifications of the outcome of the procedure to the European Commission. The contracting authority can also publish advertisements on other websites, provided that the advertisement was published on TenderNed first.

Even when the work, service or supply was not purchased via a European tender procedure, the contracting authority can still publish advertisements on TenderNed.

If the contracting authority fails to announce a tender when it is obliged to do so, this may lead to the cancellation or invalidation of the tender procedure, or even to the annulment of the concluded contract. A contract concluded under these circumstances is voidable.

Type of Information Disclosed in the Advertisement

The information that must be disclosed in the advertisement will be stipulated in the standard forms, and includes the following:

• information about the contracting authority;
• a description of the contract and the scope thereof;
• the conditions and (award) criteria for admitting economic operators to the tender procedure; and
• details of how any pre-selection will be conducted.

The advertisement is therefore an almost complete description of the tender procedure.

The contracting authority can perform a preliminary market consultation before it launches the contract award procedure. The intensity of the preliminary market consultations depends on the type of contract, with high-security and/or complex tenders requiring a more intensive approach. With more routine contracts, online market research can be enough.

The preliminary market consultations can help with the drawing up of contract specifications or in testing the feasibility and preconditions of the contract. Also, economic operators can give insight into possible solutions to a problem or the most suitable tender procedure.

The results of the preliminary market consultations must be made public. The advice received is used to draw up the contract specifications, the tender strategy and the choice of tender procedure. Economic operators cannot derive any rights from the information provided to them during the market consultation.

There are different procedures under Dutch public procurement legislation, some of which allow for negotiations between the economic operators and the contracting authority. In the case of negotiations, the contracting authority is always obliged to guarantee the main principles of equal treatment, non-discrimination, transparency and proportionality.

The open procedure and the restricted procedure are the two default procedures, whose use does not need to be justified by the authority. Whenever the authority decides to use any of the other procedures, it must justify this decision in the procurement documents.

Open Procedure

The open procedure starts with the publication of an advertisement inviting any interested economic operator to submit a tender. The economic operators need to submit their offers together with the information needed to assess the fulfilment of the selection criteria. The contracting authority will assess both the tenderer and the tender at the same time.

Restricted Procedure

The restricted procedure starts with the publication of an advertisement inviting any interested economic operator to submit a request to participate. In this phase, the economic operator must fulfil the eligibility requirements and selection criteria. They also need to declare that the exclusion grounds are not applicable to them.

After that, the contracting authority will select which economic operators shall submit a tender.

Negotiated Procedure with Prior Call for Competition

The negotiated procedure with prior call for competition can only be used in specific circumstances, as stated in the legislation. Economic operators will submit a request to participate at first. After that, the tender phase takes place and the selected economic operators may submit a tender, which is subject to negotiations with the contracting authority. After the negotiations, the economic operators must submit their final tender. Parties cannot negotiate about the minimum requirements and the award criteria.

Competitive Dialogue

The competitive dialogue offers scope for suitable economic operators to propose various solutions to meet the contracting authority's needs. During the dialogue, the contracting authority can work out the proposed solutions in more detail with these participants and ultimately determine which solutions best meet its needs. This happens mostly in two phases. At first, between three and five economic operators will be selected. In the next (dialogue) phase, the contracting authority can negotiate the best solution with the selected economic operators. Any aspect of the contract may be discussed during this phase. After choosing the winning tender, negotiations may follow with regard to the financial commitments or other conditions contained in the tender, with a view to finalising the terms of the public contract. Such negotiations must not alter the essential aspects of the tender or the requirements and rules indicated in the tender documents, and may not lead to any distortion of competition or to discrimination.

Innovation Partnership

The innovation partnership consists of three phases. An innovation partnership can be entered into with one or more economic operators. If the contracting authority concludes the innovation partnership with several companies, it can reduce the number of participants in each phase. The innovation partnership must be awarded on the basis of best value for money.

The first phase is the competition phase, in which the purpose for which the innovative solution is required is stated, alongside the minimum requirements that the innovative solution must meet. This description must make the contract sufficiently definable. The second phase includes negotiations, although there can be no negotiation with regard to the minimum requirements and the award criteria. The last phase is the research and development phase, in which the innovation partnership includes the realisation of the innovative solution, such as the development of a prototype, the production of a test series and the implementation of the pilot project. In this phase, according to intermediate targets, the number of partners may be reduced or the decision may be taken to terminate the innovation partnership. Reimbursement of the partners during the research and development phase takes place in appropriate instalments.

Competitive Procedure without Prior Call for Competition

This procedure can only be used in the following circumstances:

• where no tenders or no suitable tenders or no requests to participate or no suitable requests to participate have been submitted in response to a procedure with a prior call for competition, provided that the initial conditions of the contract are not substantially altered;
• where only one economic operator is able to perform the contract, for any of the following reasons:
1. the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;
2. competition is absent for technical reasons; or
3. for the protection of exclusive rights, including intellectual property rights;
• where the contract needs to be performed with extreme urgency;
• where the supply contract is purely for the purpose of research, experiment, study or development, and not for the purpose of securing a profit or recovering research and development costs, and insofar as the award of such contract does not prejudice the competitive award of subsequent contracts which do seek such ends in particular;
• in the case of supply contracts for additional deliveries by the original supplier that are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting entity to acquire supplies with different technical characteristics that would result in incompatibility or disproportionate technical difficulties in operation and maintenance;
• for supplies quoted and purchased on a commodity market; and
• for purchases of supplies or services under particularly advantageous conditions from either a supplier that is definitively winding up its business activities or the liquidator in an insolvency procedure, an arrangement with creditors or a similar procedure under national laws or regulations, and, where the service contract concerned follows a design contest, to the winner or to one of the winners of that contest; in the latter case, all the winners shall be invited to participate in the negotiations.

The contracting authority can negotiate with the economic operators concerned and draw up a report on the award of the contract. It has to announce the award decision and may then conclude the contract.

Under the Public Procurement Act 2012, the contracting authority is obliged to choose both the type of tender procedure and the number of economic operators that will be admitted to the tender on objective grounds. At the request of an economic operator, the contracting authority must be able to substantiate its choice in writing. The choice depends not only on the regulations, but also on the available budget and the purchasing needs of the contracting authority, with the principle being that the contracting authority chooses the most effective procedure that meets the purchasing needs of the organisation at the lowest cost. The contracting authority should keep the following matters in mind:

• the tendering rules and internal purchasing guidelines;
• the nature of the contract;
• the type of the contract;
• any special circumstances;
• the size of the contract;
• the level of detail;
• the type of contracting authority;
• any administrative burden;
• the market situation;
• the award criteria;
• the policy objectives;
• competition;
• the length of the procedure; and
• the importance of the product.

The Public Procurement Act 2012 states different timeframes for tender procedures. The timeframe for the tender procedure can be shortened if all the procurement documents are directly published at once and are made available electronically. This can save the contracting authority up to ten days.

Open Tender Procedure

When all of the procurement documents are directly published online, the economic operators have at least 45 days to submit their tenders. If the contracting authority does not publish all the documents at once (or not electronically), the time for economic operators to submit their tenders is extended by five days. When the contracting authority announces the tender between 52 days and 12 months ahead, the economic operators have 29 days to submit their tender. If submitting the tender can be done electronically, the time for submitting the tender can be shortened by five days (ie, 40 days without pre-announcement and 24 days with pre-announcement).

Restricted Tender Procedure and Negotiated Procedure with Prior Call for Competition

The phase up to submitting the request to participate will take at least 30 days. After the selection phase, the timeframes are the same as in the public tender procedure.

Competitive Dialogue and Innovation Partnership

The contracting authority must give economic operators 30 days to submit their request to participate. After the evaluation of the requests, no statutory time limits apply.

Pursuant to the Public Procurement Act 2012, the contracting authority can ask for the following eligibility requirements:

• financial and economic standing;
• technical and professional capacity; and
• professional competence.

The Proportionality Guide states that a contracting authority shall only use eligibility requirements where such relate to the actual risks involved in the contract or to the desired competence(s). If the contracting authority chooses a multiple private tender procedure, it shall only request eligibility requirements when it does not yet know if the economic operators will comply with these requirements.

Besides the eligibility requirements, the contracting authority is obliged to use the European Single Procurement Document for the exclusion grounds. The contracting authority is free to add optional exclusion grounds, as stated in EU Directive 2014/24.

In a multiple private tender procedure, it is possible for a contracting authority to invite only a small number of qualified suppliers. This procedure can only be applied when the value of the contract is below the European threshold. The qualified economic operators must be chosen on objective grounds (see 2.4 Choice/Conditions of a Tender Procedure).

The contracting authority must invite a minimum of three economic operators and a maximum of five.

The contracting authority shall award the contract to the most economically advantageous tender. This will be determined by the contracting authority on the following criteria:

• best value for money;
• lowest cost calculated on the basis of cost-effectiveness, such as the life cycle costs; or
• lowest price.

In principle, the contracting authority must use "best value for money" as a criterion. If it wishes to award the contract based on lowest cost or lowest price, this decision must be substantiated in the tender documents, under the comply or explain principle.

The assessment criteria on which the economic operators are selected and tenders are evaluated need to be communicated in the tender documents or the advertisement, together with the specifications, requirements and wishes. In a non-public procedure, these documents are usually called the selection and award guidelines, while in a public procedure they are usually called the descriptive document or specifications.

The contracting authority satisfies its obligation to state reasons when, in the first instance, it limits itself to informing the parties who have not been selected immediately of the rejection by means of a simple and unreasoned communication.

The contracting authority must provide a reasoned explanation of the rejection within 15 days to the party that has not been selected, if such is requested by that party. The minimum information that must be included in the explanation is not specified but could include an indication of the manner in which the applications have been assessed and the grounds on which the contracting authority has reached the conclusion that the economic operator must be excluded or rejected. If the rejection takes place on the basis of selection criteria, it follows from the principle of transparency that the characteristics and advantages of the selected economic operators should also be stated.

In most cases, the motivation is provided directly instead of waiting for the economic operator’s written request for explanation.

The Public Procurement Act 2012 requires a contracting authority to provide a sufficiently reasoned explanation of the reasons for its decision in the award decision. This offers rejected economic operators the opportunity to consider, within the standstill period, whether objecting to a rejection would be useful. Such explanation should be sent at the same time the award is announced.

The rejection must therefore include the relevant reasons for the decision and the standstill period for the final award decision. If the rejection does not meet either of these conditions, even after the standstill period, an economic operator can start preliminary proceedings to set aside the contract. The period only begins the day after the date on which the notification of the award decision was sent to the tenderers. It is not permitted to supplement the grounds for the decision after the announcement of the provisional award, so it is better to state the reasons broadly and to restart the standstill period when substantive additions are made to the grounds for the decision.

A notice of rejection should include the following details:

• which party has been awarded the contract;
• the grounds for the award decision;
• the amount for which the contract was awarded (if the contract is awarded based on lowest price);
• the score of the rejected tenderer in relation to the winning tender (also indicating the strengths and weaknesses); and
• how and within what period tenderers may exercise legal remedies against the award decision.

As stated in 3.2 Obligation to Notify Interested Parties Who Have Not Been Selected, a standstill period is mandatory and should last a minimum of 20 calendar days (the so-called Alcatel period). In deviation thereof, a standstill period is not required if:

• the Public Procurement Act does not require publication of the public contract notice by means of the electronic procurement system;
• the only tenderer involved is the one to whom the public contract will be awarded and there are no interested economic operators; or
• the contracts involved are those under a framework agreement or specific contracts under a dynamic purchasing system.

In a multiple private tender procedure, the Proportionality Guide advises a standstill period of between seven and ten calendar days (see 2.8 Restriction of Participation in a Procurement Process).

The contracting authority appoints an evaluation committee to evaluate the tenders. In the Netherlands, there is no authority that reviews this awarding decision: it is up to the economic operators to see if the award decision is in line with the legislation and the tender documents. If that is not the case, the economic operators can appeal the award decision in preliminary relief proceedings to challenge the decision.

Economic operators or other interested parties (such as trade associations) can also file a complaint with the Commission of Public Procurement Experts (Commissie van Aanbestedingsexperts). This can only be done after a complaint is first filed at the complaints office of the contracting authority and, apparently, the complaint was not handled satisfactorily. However, a letter or complaint to the contracting authority will not suspend the award decision.

Other Ways of Supervision

The auditor also plays a role in reviewing the tender procedure and the concluded agreement afterwards. Contracting authorities must account for the legitimacy of their decisions regarding procurement regulations. If such accounting is insufficient, the auditor may not issue a qualified opinion on the financial statements.

Third parties have the possibility to ask for information from contracting authorities based on the Government Information (Public Access) Act (Wet openbaarheid van bestuur). However, under the Public Procurement Act, contracting authorities are bound by the obligation not to disclose certain details of the procurement, such as the confidential information (eg, price or methods of operation) of the tenderers.

In the Public Procurement Act 2012, legal protection is regulated both before and after the conclusion of the contract. These rules supplement what is regulated in general in the Civil Code (tort (government) acts, annulment of contracts and actions for damages).

At preliminary relief proceedings, the economic operator can claim the following:

• an order to cease the tendering procedure;
• an order to (re)invite tenders;
• an order to admit the economic operator to the tender procedure;
• an order to award the contract to the claimant;
• an injunction against awarding the contract to a party other than the claimant; or
• a prohibition on awarding to a third party.

After the contract has been concluded between the contracting authority and the winner, an economic operator can claim annulment of the agreement or damages.

Annulment

Annulment of the agreement is possible if:

• the contract was concluded (privately) in violation of the Public Procurement Act without prior publication of an advertisement in the Official Journal of the European Union (OJEU);
• the standstill period (Alcatel period) was not (properly) applied prior to the conclusion of the agreement; or
• a further agreement was concluded on the basis of a framework agreement without applying a standstill period and, contrary to the conditions of the framework agreement, without holding a (valid) mini-competition.

The annulment must be demanded within six months after the day on which the agreement was concluded. This period can be reduced by the contracting authority to 30 calendar days if:

• the contract award advertisement is published in the OJEU via TenderNed within 30 days after the award of the public contract or the conclusion of the framework agreement; or
• the contracting authority has informed the candidates and tenderers of the conclusion of the contract and has explicitly included the relevant reasons for the award decision.

Damages

An economic operator may claim damages from a contracting authority if it can prove that the contracting authority acted unlawfully towards it as a result of non-compliance or incorrect compliance with the procurement rules, and that it has suffered losses as a result. To this end, the economic operator must first prove that the contract would have been awarded to them if the contracting authority had tendered the contract in accordance with the applicable rules. This is usually not easy to achieve.

In addition, the economic operator must substantiate this damage; it may consist of a claim for compensation of costs incurred or loss of profit (negative and positive contractual interest).

It is possible to start preliminary relief proceedings and request suspension of the procedure in court (see 4.2 Remedies Available for Breach of Procurement Legislation). An economic operator also has the possibility to file a complaint at the contracting authority, but the latter is not obliged to suspend the procedure at that moment.

Only economic operators that are involved in the tender procedure can challenge the award decision. However, every economic operator that is interested in the contract can challenge the legitimacy of the tender procedure.

The time limits within which the economic operator can challenge an award decision are mentioned in the award decision. In principle, this is 20 days (the Alcatel period), although it can be seven (or ten) days in a multiple private tender procedure or a tender procedure for social and specific procedures. The Proportionality Guide states that the standstill period of 20 days is a minimum period; it may be possible and/or advisable to extend the period in certain circumstances, in the interest of both the contracting authority and the economic operators. Unfortunately, it is very rare for a standstill period to be longer than 20 days.

The award decision states the period within which a preliminary relief proceeding must be pending. The court hearing will be held within six to 12 weeks, and the judge will give their judgment two weeks after the hearing. Therefore, parties most often have a judgment within 17 weeks of the provisional award decision being sent.

Not all claims are made publicly available. Pursuant to the Dutch case law record, approximately 300 claims were filed in 2021.

The costs involved in challenging an award decision in a preliminary relief proceeding (ie, court fees, fixed legal costs) are approximately EUR2,000–2,500 for the unsuccessful party. There is no obligation to pay all costs of the attorney of the unsuccessful party; these are included in the fixed legal costs. The actual costs of legal assistance in summary proceedings can vary from EUR5,000 to EUR30,000, for each party.       

As ruled by the CJEU, any substantial modification of the contract requires a new call for tenders, as the modified contract is then considered to be a new public contract. In any case, this is necessary if the amendment results in substantial differences between the original contract and the contract that was renegotiated by the parties. An amendment can be regarded as substantial if conditions are laid down that would have led to the admission of a different tender in the selection phase or a different assessment of the tenders. In that case, necessary measures should be taken to restore the transparency of the procedure, and a new procurement procedure will be the obvious choice. A mere textual clarification or a change in formalities is not a modification.

Nevertheless, (interim) modification of contracts after the award is only permissible under the following circumstances:

• if it is a de minimis modification that does not change the general nature of the contract – this is the case if the amount involved in the modification is less than:
1. the threshold value; or
2. 10% of the value of the original contract for supplies and services, or 15% for works;
• if the original contract documents contain clear, precise and unambiguous revision provisions that describe the scope and nature of possible changes and have a clear scope of application;
• if the change was unforeseen for a diligent contracting authority – this is the case if:
1. the modification does not alter the overall nature of the contract; and
2. the price increase does not exceed 50% of the value of the original contract;
• if the modification consists of additional works, supplies or services that were not foreseen and have become necessary – this is the case if:
1. it is not possible to change the contractor for economic or technical reasons;
2. an amendment would result in a considerable increase in costs for the principal; and
3. the price increase is less than 50% of the value of the original contract; or
• if the modification involves the replacement of a contractor – such a replacement is not substantial if:
1. the contract has an unambiguous revision clause or option that is clear, precise and unambiguous; or
2. the universal or partial succession into the position of the initial contractor, following the corporate restructuring – including takeover, merger, acquisition or insolvency – of another economic operator, fulfils the criteria for qualitative selection initially established, provided that this does not entail other substantial modifications to the contract and is not aimed at circumventing the application of the applicable directive.

It is permissible to directly award contracts without prior publication of the tender under the following circumstances:

• the contract has a value below the threshold value, notwithstanding possible national procedures;
• the tender concerns the supply of weapons, munition and other warfare/military supplies;
• the tender concerns the execution of a contract that needs to be kept secret;
• the tender concerns enabling the contracting authority to use or exploit a telecommunication network;
• the tender concerns financial services;
• the tender concerns a contract for services concerning legal proceedings;
• employment contracts do not need to be procured;
• the tender concerns services for research and development;
• the tender is reserved for certain parties, such as sheltered workshops (such tenders mostly still require procurement, but for a limited group of parties);
• the tender can be awarded in-house (only if certain criteria are met);
• the tender can be completed by another public entity (this is called a public-public co-operation and is only allowed if certain criteria are met); or
• a contracting authority awards the contract to another contracting authority.

The highest judge of the Netherlands (Hoge Raad) decided on 26 November 2021 that, when governmental bodies issue plots of land, they should ensure a level playing field and a level of transparency for interested parties. Although this does not strictly fall under the scope of the Public Procurement Act, it has strong connections with procurement law. Therefore, in legal practice, the judgment is interpreted in light of the procurement law.

A new version of the Proportionality Guide came into effect on 1 January 2022, with the following important changes:

• especially in large or complex procurements, it is recommended that multiple rounds of summaries of additional information and changes are used;
• contracting authorities must provide substantive answers to questions from tenderers that have been raised in a timely manner;
• it is disproportionate to continue the tender procedure in accordance with the planning without providing an answer;
• if an economic operator does not agree with the answer to questions or if there is a fundamental point on which, according to the schedule, no further question can be asked, the economic operator may submit a complaint;
• it is disproportionate to let the failure to ask a question automatically lead to the forfeiture of the right to raise the issue, although economic operators do need to take a proactive stance;
• in certain cases, it may be proportionate to still answer questions after the period for asking questions;
• it is proportionate to take into account a reasonable standstill period in the case of multiple negotiated tender procedures, given the circumstances. Depending on the type of procedure, periods of seven or ten calendar days may be considered;
• economic operators must proactively make objections known at the earliest possible stage, and contracting authorities must respond to these objections;
• it is not proportionate to exclude suspension of the tender period in advance when submitting an objection;
• it may be the case that an economic operator does not submit an objection until after the provisional award decision, as a result of information that was not obtained until after that. It may then be proportionate for the contracting authority to deal with this complaint; and
• a provision in the tender documentation that unreasonably restricts the possibility of legal protection or instituting proceedings on the merits is disproportionate.

Furthermore, the Dutch parliament is considering a bill to strengthen the legal protection of economic operators in the context of tender procedures. This bill includes the following propositions:

• a restriction of the extreme application of legal processing clauses in the preparation and execution of the procurement procedure;
• each contracting authority has to have an independent complaints office and needs to make the handling of complaints more professional;
• concerning going to court, the obligation for contracting authorities to give reasons for their decisions will be tightened up, which should give economic operators more insight into the reasons for not winning a contract. As a second point of attention, the addition of a fourth ground for annulment has been proposed; and
• an annual monitoring and accountability of complaint handling for contracting authorities will be introduced.