A contracting authority possesses the power to terminate a procurement process under specific conditions.
In a recent ruling, the District Court of The Hague has determined that a contracting authority has the right to cancel a procurement procedure if a sub-award criterion is insufficiently clear, even if the lack of clarity results from inaccurately drafted procurement documents by the contracting authority itself. This decision was made in relation to a European tender launched by the municipality of Alphen aan den Rijn for the development of a residential area with approximately 350 homes.
The evaluation of the tender was based on the Most Economically Advantageous Tender (MEAT) criterion, with sub-award criterion K3 - "Integration of Sustainability" - accounting for 200 out of 1,000 points. However, the instruction regarding the "most common housing type" in the tender documents was not further clarified, leading to confusion among tenderers about which housing type should be considered.
Furthermore, the municipality provided inconsistent guidance on this matter, adding to the confusion. This inconsistency, coupled with the unclear instructions, resulted in a procedure that violated the principles of equal treatment and transparency.
In response to questions raised by tenderers, the answers in the Q&A documents did not provide clear clarification, instead referring to using the best-performing, worst-performing, and most common house type inconsistently. Additionally, it remained unclear how many sustainability scores needed to be provided and what specific scores were expected under sub-award criterion K3.
The evaluation process was not transparent, as the municipality applied a method (calculating weighted averages) that was not disclosed in the procurement documents. This lack of transparency further contributed to the violation of the principles of equal treatment and transparency.
Tenderer Van Wijnen received the highest score and was awarded the provisional contract on 18 October 2024. However, another tenderer objected and initiated preliminary relief proceedings, prompting the municipality to withdraw the provisional award decision and the entire procurement procedure.
The judge found that the defects in the procurement procedure could not be remedied by re-evaluation. Therefore, the municipality was entitled to cancel the procurement procedure. The ruling provides practical tips for tenderers and contracting authorities, emphasizing the importance of clear tender documents and proper reasoning for cancellation decisions.
This decision serves as a reminder to contracting authorities to ensure that their procurement documents are clear, transparent, and free of ambiguity to maintain fairness and equality in the tendering process.
After the confusion caused by unclear and inconsistent instructions about the "most common housing type" in the tender documents, the municipality of Alphen aan den Rijn's procurement procedure for a residential area development violated the principles of equal treatment and transparency. Furthermore, the lack of transparency in the evaluation process, including the undisclosed method for calculating weighted averages, further exacerbated this issue. This highlights the necessity for contracting authorities to draft procurement documents clearly, ensuring energy efficiency, financial transparency, and business integrity in all lawful dealings.
