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In these summary proceedings, the central question is whether the State could have decided to announce a re-invitation to tender. The preliminary relief judge is of the opinion that this is even necessary in this case, because the procurement guide contains undeniable contradictions. (Court of The Hague, 11 July 2019, no. C / 09/572708 / KG ZA 19-407, ECLI: NL: RBDHA: 2019: 9546)
Facts and circumstances
The State has organized a European public tender for the delivery of standard and customized aluminum crates and inlays for the transport and storage of goods from the Ministry of Defense (hereinafter: the contract). The program of requirements (hereinafter: pve) stipulates, among other things, that the lid of the aluminimum crate must be provided with an integrated gasket and that the crate must be at least dust and water-tight in accordance with IP53.
Nefab Bijl BV (hereinafter: Nefab) and Faes Cases BV (hereinafter: Faes) have registered in time for the tender. Initially, the contract was initially awarded to Nefab, but the State will return to this by letter dated 30 January 2019. After verification of its registration, it was found that it did not meet the required integrated packing of the box.
Nefab has objected to this decision. The State announced on 6 February that its registration was indeed wrongly considered unacceptable and that the contract was again awarded to it provisionally. Faes has challenged that provisional award decision. Faes registration has also been declared invalid because it would not meet a requirement in the Tender Guide.
The Ministry of Defense has had an independent third party test whether the demo box of Nefab is dust and watertight in accordance with IP53. That investigation has shown that the box does not meet this requirement. The provisional award to Nefab has been canceled and the registration of Nefab has been declared invalid.
The State has decided to re-tender because of the lack of valid registrations.
Re-tendering
In de kern staat de vraag centraal of de Staat heeft kunnen besluiten om een heraanbesteding aan te kondigen. De Staat heeft die aankondiging gegrond op de omstandigheid dat volgens hem geen geldige inschrijvingen zijn ontvangen.
In the opinion of the preliminary relief judge, the decision of the State to proceed with a re-tendering can stand the test of criticism. The reason for the re-tendering, however, is not the absence of legally valid tenders, but the fact that the assessment system described in the tendering guidelines contains internal contradictions / ambiguities, which means that this system is open to multiple explanations. As a result, a proper assessment of the tenders cannot take place, which implies a violation by the State of the applicable procurement law principle of equal treatment and closely related transparency principle.
In the present tendering procedure, in the provisional judgment of the preliminary relief judge, there is no clear, precise and unambiguously formulated assessment system.
The tender guide stipulates that tenders must comply with the pve and that failure to meet these requirements leads to exclusion from the relevant tender. The tenders must first be assessed for compliance with the PVE and then with the sub-award criteria.
The States assertion that dust and watertightness should be seen as a knock-out criterion, because in their opinion this can be removed from the PVE, is only possible if this is stated in the procurement guidelines in a clear, precise and unambiguous manner. made known to the tenderers. That has not happened in the present case.
The conclusion is that, insofar as it still wishes to award the contract, the State must organize a re-tendering. At that state of affairs, none of the claims of Nefab in this summary proceedings are admissible.
Decision
The court in preliminary relief proceedings rejects the claims made by Nefab and determines that all parties bear their own costs. |
