Obligation to Tender for Contracts Not Subject to Procurement Directives?
European Procurement Directives, as have been elaborated in the
BAO (the Public Contracts Tendering Rules Decree (Besluit
aanbestedingsregels voor overheidsopdrachten)) and the BASS
(Special Sectors Tendering Decree (Besluit aanbestedingen
speciale sectoren)), entail that it must be examined - before
contracting authorities enter into contracts for the execution of
works or constructions, the delivery of products or the provision
of services - whether the relevant contract has to be awarded
according to a European public procurement procedure. As has been
reported in the previous newsletter, new threshold values apply
since 1 January 2010 for the obligation to invite tenders, namely a
threshold of €4,845,000 for contracts for works and a threshold of
€193,000 for contracts for services and deliveries. However, this
does not mean that there would be no obligation to invite tenders
for contracts below these thresholds and for services that are
partially excepted from the application of the Directives (the
so-called "2 B services").
Case law of the European Court of Justice shows that contracts not
covered by the European Procurement Directives and 2 B services are
also subject to the general principles of the Treaty on the
Functioning of the European Union (the former EC Treaty),
especially the principles concerning the free movement of goods and
services and the freedom of establishment. As a result, the
principles of non-discrimination, transparency and objectivity must
also be applied to procurements that do not fall under the scope of
the Directive. The obligation of transparency means that not only a
specific procurement procedure should be applied for contracts
below the thresholds and 2 B services, but also that there is no
room anymore for direct one-on-one award (single direct award).
Incidentally, the legislative proposal for the future Dutch Public
Procurement Act prescribes that the general principles of public
procurement must be applied to contracts above and below the EC
thresholds.
Clear Cross-Border Interest
Various EC judgments and the Commission Interpretative
Communication from 2006 go into this principle of transparency,
which consists in ensuring, for the benefit of any potential
tenderer, a degree of advertising sufficient to enable the market
to be opened up to competition. The obligation of transparency
applies exclusively if the contracts have a clear cross-border
interest, which means that there is an actual and realistic
interest on the part of foreign providers (ECJ, An Post, C-507/03
of 13 November 2007, ground. 29 and ECJ, SECAP, C 147/06 and 148/06
of 15 May 2008, ground 210. Also Court of Maastricht, 8 October
2008, HA ZA 07-419). Those who want to enforce transparency have to
prove that there is such an interest. It will depend on the
circumstances of the case how probable the foreign interest is,
including the nature and value of the contract and the existing
patterns of cross-border movement of goods and services. Case law
proves that the place of execution and the small economic value of
the contract may be indications for the lack of a clear
cross-border interest (ECJ, Commission/Italy (C-412/04) of 21
February 2008).
Substance of the Obligation of Transparency
Case law makes clear that the obligation of transparency is
fulfilled if a contracting authority exercises a sufficient degree
of advertising with regard to the contract. According to the
Commission Interpretative Communication, the obligation of
transparency requires in such cases that an undertaking located in
another Member State has access to appropriate information
regarding the contract before it is awarded, so that, if it so
wishes, it would be in a position to express its interest in
obtaining that contract (Commission Interpretative Communication on
the Community law applicable to contract awards not or not fully
subject to the provisions of the Public Procurement Directives, OJ
EC 2006, C 179/02). The contracting entities are responsible for
deciding the most appropriate medium for advertising their
contracts. In the Commission Interpretative Communication, the
Internet is named as an adequate and commonly used means of
publication, especially the contracting entity's own website
and portal websites specifically created. According to the
Communication, local publication is only appropriate for very small
contracts for which there is only a local market. In fact, the
Commission assumes that a negotiation procedure with a prior
invitation to tender must be followed, possibly with the help of
publication on the website of the contracting authority. A case
that was heard by the Court of Dordrecht in preliminary relief
proceedings has demonstrated that the announcement of a contract
for a 2 B service at http://www.aanbestedingskalender.nl (in Dutch) is
regarded as appropriate (Court of Dordrecht in preliminary relief
proceedings, 14 December 2006, KG ZA 06-1 96 and Court of The Hague
in preliminary relief proceedings, 21 January 2008, LJN
BC3144).