What are tender procedures?
When a client, including governments, announces that it wishes to commission a third party to carry out a certain project, thereby inviting multiple undertakings to submit offers, this is considered a tender procedure. Tendering stimulates competition on the market, and it offers all interested parties an equal chance of securing the assignment.
Certain projects that governments wish to put out to tender are bound to European procurement guidelines, projects such as purchasing, outsourcing, as well as projects whose value exceed a certain threshold. In the Netherlands, these European procurement guidelines have been converted into national regulations, laid down in the Decision on Public Procurement Rules (Bao) and the Decision on Special Sector Procurement Rules (Bass).
The European procurement guidelines, Dutch procurement rules, and the thresholds can be found on the website of the Dutch Ministry of Economic Affairs (in Dutch), which also includes information on new legislation.
What does the NMa do?
If undertakings that are taking part in a tender procedure conclude agreements, it may be considered a cartel. If so, the Dutch Competition Act is applicable.
Section 6 of the Dutch Competition Act prohibits agreements between undertakings, decisions of trade associations, and concerted practices that have the intention to or will result in hindrance, impediment or distortion of competition on the Dutch market or on a part thereof.
Examples of competition-restrictive agreements in tender procedures include: overbidding, bid rigging, bid rotation schemes, market sharing or price-fixing.
In connection herewith, also see the form on Notification of indications with the NMa concerning competition-restrictive agreements in tender procedures of construction projects (in Dutch).
If you have any indications that undertakings have concluded illegal agreements, the NMa would like to hear from you. Please contact the NMa Information Line by calling at +31-70-330-1306, if you would like to tip off the NMa, or if you would like to have more information. Alternatively, you could send the NMa an e-mail.
What does the NMa not do?
The Dutch Competition Act does not regulate the actual method of tendering, nor does it grant the NMa any powers as to resolving disputes relating to the outcome of the tender procedure. If parties believe that a tender procedure was carried out improperly, they are advised to go to a civil court.
