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In these summary proceedings, the judge in interlocutory proceedings decides on the question whether there is an extension of the agreement on the basis of an extension option, and whether the defendant was allowed to award a private agreement on a bridging agreement. (Court of The Hague, ECLI: NL: RBDHA: 2019: 5053) Facts and circumstances HTM provides public long-distance passenger transport by road. HTM is a special sector company as referred to in the Public Procurement Act 2012. Envido provides services in the field of personnel. A security agreement was concluded between the parties in 2013 for a duration of 3 years and 7 months (hereinafter: the Agreement), starting on 31 May 2013 and ending on 31 December 2016. The Agreement can be extended twice by one year (ex art. 1.2 Agreement). The Agreement has been extended twice by one year (most recently until 31 December 2018). On 24 July 2018, HTM announced a public tender for the contract for the provision of security services. Envido has submitted a registration. HTM has awarded the contract to G4S Direct BV for the time being. Envido started an interim injunction proceedings on 5 November 2018, because, in its opinion, there was a conflict of interest and HTM staff seemed to have been involved in the execution of the tender procedure. HTM has started an investigation and has withdrawn the tender. After 31 December 2018, the services of Envido have been extended twice at the request of HTM until 18 May 2019. The contract will be put on the market in a substantially modified form in the future. HTM intends to conclude a temporary bridging agreement with G4S for the period after 18 May 2019 for a period of six months. For the implementation of the Bridging Agreement, the Envido staff will transfer to G4S. Extension option In the provisional judgment of the preliminary relief judge, it follows from the e-mail exchange between the parties that Envido and HTM have reached agreement on an option to extend two times four weeks, after 18 May 2019. However, the preliminary relief judge finds that it is clear from the e-mail from HTM It follows that it will not use the extension option. After all, HTM has announced that it will conclude a Bridging Agreement with G4S after 18 May 2019 and that for this purpose the staff must transfer from Envido to G4S. This made it clear that HTM would not use the option to extend the existing Agreement with Envido after 18 May 2019. HTM announced in time that it would not use the option. HTM announced a month in advance that it would not make use of an extension option. The preliminary relief judge considers that this is sufficiently timely. Now that HTM has announced in time that it will not make use of the extension option, it is established that no further extension has been agreed between the parties, so that the existing Agreement between Envido and HTM will end on 18 May 2019. Bridging agreement The next question to be answered is whether the HTM is permitted under procurement law to conclude a temporary Bridging agreement with G4S for the period after 18 May 2019. There is no dispute between the parties that the value of the temporary contract exceeds the procurement threshold, so that it must in principle be put out to tender. However, HTM states that there is an emergency situation ex art. 3.36 paragraph 1 sub d Aw 2012, as a result of which it was permitted to privately award the Bridging Order to G4S. In the preliminary judgment of the preliminary relief judge, HTM has made it sufficiently plausible that in this case the aforementioned conditions of art. 3.36 paragraph 1 sub d Aw 2012 has been met. First of all, HTM has made it sufficiently plausible that an unforeseen circumstance has occurred in connection with this. Furthermore, HTM has made it sufficiently plausible that, as a result of this unforeseen event, it has been forced to conclude a temporary Bridging Agreement by private agreement, since HTM has withdrawn the earlier tender because of the conflict of interest identified and as a result had to launch a new tender. HTM has made it sufficiently plausible that it is not possible to realize the necessary organizational reforms before 18 May 2019 and to complete a regular tender for the services to be outsourced. The necessity of a temporary Bridging Agreement after May 18, 2019, until the internal reorganization and the new amended tender has been completed, is therefore given. It has become sufficiently plausible that the criterion of art. 3.36 paragraph 1 sub d Aw 2012 is permitted to privately grant the Bridging Agreement due to an urgent situation. Finally The primary claims of Envido are rejected. Envido will be ordered to pay the costs of these proceedings. (IBR, June 5, 2019) |
