The WIRA Has Entered Into Force
In our newsletter of January 2010 Otto Sleeking already
reported on the Implementation of Judicial
Protection Public Procurement Directives Act (Wet
implementatie rechtsbeschermingsrichtlijnen aanbesteden -
WIRA)). Meanwhile, the bill was discussed in the Senate and
adopted on 19 January 2010. The adoption occurred under a
condition, after the Economic Affairs Committee had posed some
substantial questions to the Minister of Economic Affairs. Next,
on 19 February 2010 the WIRA entered into force, two months
after the Judicial Protection Directives should have been
implemented. In the meantime the Judicial Protection Directives
did have direct effect for entrepreneurs towards the
government.
Article 20 of the WIRA
After the discussion of the bill by the Economic Affairs
Committee, the report posed three questions to the Minister of
Economic Affairs, Maria van der Hoeven. The Minister answered the
questions and one question was subsequently further discussed in an
exchange of letters between the committee and the Minister. This
concerned Section 20 of the WIRA, which stipulates that when
arbitration is agreed upon for settling a public procurement
dispute, an appeal may be filed before a court against the arbitral
award.
There was some confusion about the concept of "appeal" in the
committee. It appears from the Minister's answer that in this case
"appeal before the court" means the possibility to set aside the
arbitral award pursuant to Section 1064 of the Dutch Code of Civil
Procedure. In a letter dated 22 December 2009 the committee asked
the Minister to replace the concept of "appeal" by the quashing
clause, and requested the Minister to submit a bill to amend the
bill discussed to the Lower House. In a reaction the Minister
indicated that she did not object to explicitly including this
option to set aside the arbitral award in Section
20.
Adjustment of the WIRA
Since the adoption of this act is urgent - as the Judicial
Protection Directives should already have been implemented in
national legislation on 20 December 2009 - the Minister has
proposed an alternative manner in which to correct this lack of
clarity in the WIRA. This alternative entails that the Senate
adopts the WIRA in its current form, while the Minister promises to
adjust the above-mentioned section of the WIRA and to submit a bill
to the House of Representatives to that effect. The Minister seeks
to submit this bill in the first quarter of 2010. An aspect that
plays a role here is that the option to set aside the award already
appears from the report to the bill and also from the policy
document based on the report. Until the WIRA is adjusted, this
should provide sufficient certainty and clarity, according to the
Minister.
WIRA Has Entered Into Force
Submitting an entire new bill to the Upper House would imply
that the implementation period would be exceeded further still. The
Minister established that the protection intended by the WIRA would
not be realized that way. The Senate also agreed to this and
subsequently the bill for the WIRA was adopted. The WIRA entered
into effect on 19 February 2010.
Meanwhile, we still have to await the bill with which Section 20 of
the WIRA will be amended, although until that time the meaning of
this section already appears from the parliamentary documents. In
short: the WIRA is a fact and offers more possibilities for public
procurement law enforcement. For more information please consult
the
article that Otto Sleeking wrote about the
WIRA in the newsletter of January.