The District Court of The Hague recently ruled that a contracting authority may cancel a procurement procedure if a sub-award criterion proves to be insufficiently clear – even if the lack of clarity results from procurement documents that were inaccurately drafted by the contracting authority itself.
What happened?
The municipality of Alphen aan den Rijn (the “municipality”) launched a European tender for the development of a residential area comprising approximately 350 homes. The evaluation was based on the Most Economically Advantageous Tender criterion, with sub-award criterion K3 – “Integration of Sustainability” – accounting for 200 out of 1,000 points. Tenderers were required to complete a table addressing sustainability themes such as materials used, energy, and climate adaptation. When completing the table, tenderers were instructed to take into account the following:
“Fill in the table for the most common housing type and within that housing type for both a corner house and a terraced house with the most disadvantageous summer sun orientation.”
Various questions were raised regarding this instruction in the question and answer (“Q&A”, Nota van Inlichtingen) documents. The municipality issued contradictory instructions in response, offering inconsistent guidance on which housing type should be considered the “most common housing type”. It also remained unclear how many sustainability scores needed to be provided and what specific scores were expected.
Tenderer Van Wijnen received the highest score and was awarded the provisional contract on 18 October 2024. Shortly thereafter, another tenderer objected and initiated preliminary relief proceedings. In response, the municipality withdrew the provisional award decision, followed by the withdrawal of the entire procurement procedure. According to the municipality, the documents were incomplete and unclear, and the evaluation process therefore lacked transparency.
Ruling of the preliminary relief judge
The preliminary relief judge held that sub-award criterion K3 was insufficiently clear and could not be interpreted objectively. The instruction regarding the “most common housing type” was not further clarified in the tender documents. As a result, tenderers did not know which type of house should serve as the basis for their calculations. The answers in the Q&A documents also failed to clarify this point. On the contrary, they inconsistently referred to using the best-performing, worst-performing, and most common house type, without clear explanation. Furthermore, the evaluation process was not transparent: the municipality applied a method (calculating weighted averages) that was not disclosed in the procurement documents. As a result, the tenders were not comparable.
In general, and also in this case, the principle applies that when assessing the lawfulness of the cancellation of a procurement procedure, it is paramount that a contracting authority – also in view of its contractual freedom – has the right to terminate the procedure at any time. However, this freedom is not unlimited: the reasons for cancellation must not be arbitrary and must be subject to full judicial review (see, for instance: District Court of Rotterdam, 21 September 2020, ECLI:NL:RBROT:2020:9442). This Dutch case law further interprets the Croce Amica judgment, in which the Court of Justice ruled that when a contracting authority decides to cancel a contract award, it must observe a minimum level of transparency in the reasoning behind that decision.
In this case, the judge found that the defects could not be remedied by a re-evaluation. The procedure violated the principles of equal treatment and transparency. Therefore, the municipality was entitled to cancel the procedure.
Practical tips
In our view, this ruling gives rise to two practical takeaways:
- For tenderers
Tender documents – including the instructions they contain – must enable tenderers to submit their bids in a fair and transparent manner. If a tenderer considers a criterion to be unclear or vague, it is essential to (a) raise questions about it in a timely manner, and (b) lodge an objection if the contracting authority fails to adequately address such concerns.
- For contracting authorities
Contracting authorities should be aware that a decision to cancel a procurement procedure must be properly reasoned and may not be arbitrary. If sufficient reasoning is lacking, the cancellation may be vulnerable – and in some cases, successfully challenged in court.
