The Implementation of Judicial Protection Public Procurement Directives Act - II
In our
newsletter of January 2010, we discussed the
bill 32 027 drawing up the Dutch Implementation of Judicial
Protection Public Procurement Directives Act (Wet implementatie
rechtsbeschermingsrichtlijnen aanbesteden, WIRA). This bill was
adopted on 26 November 2009 in the Lower House of Parliament,
but was still being debated in the Senate at the time when the
newsletter of January 2010 was published. At this point the bill
has also been adopted in the Senate, on 26 January 2010. The
Implementation Act has been entered into force on 19 February
2010.
The WIRA is implementing the European Directive 2007/66/EG. This
Directive intends to improve public procurement law enforcement.
Before being confronted with a fait accompli: the conclusion of an
agreement, bidders must be able to institute an appeal before a
court against the award decision. The WIRA does apply to tenders of
public procurements in accordance with the provisions of the Public
Contracts Bidding Rules Decree (the BAO) and the Public Procurement
Special Sectors Decree (BASS).
For the sake of completeness you will find a short overview of
the changes arising from the entry into force of the WIRA, with
reference to our newsletter of January 2010:
- The contracting authority is obliged to disclose the
relevant reasons for this decision when rendering the decision
tot award a contract.
- If the contracting authority states insufficient grounds
for a decision to Award a contract, the standstill period of
fifteen calendar days will be suspended. An injured party is
allowed to institute an appeal before a court after this period
of fifteen days.
- If an interlocutory proceedings is actually instituted
within the standstill period, the contracting authority is
obliged to suspend the conclusion of the contract until the
appeal authority has decided on the appeal.
- An injured party may claim that the contract is to be
declared void: in the situation in which the contract is not
concluded in conformity with public procurement law and in the
situation in which the contract has been concluded without due
observance of the mandatory suspensory period of fifteen
calendar days.