Tender procedures in the Netherlands explained: which procedure is it, and what does it mean for you?

Which tender procedures are there?

Above the EU thresholds, a Dutch public buyer usually chooses from five procedures: the open procedure, the restricted procedure, the competitive procedure with negotiation, the competitive dialogue and the innovation partnership. Below the thresholds there are also national procedures and private procedures, in which the buyer invites companies directly. The rules there are covered in public contracts below the threshold.

The biggest difference for you as a bidder: can you bid right away, or must you get through a selection first? And can there still be negotiations after you bid, or does only what you submit by the deadline count?

The procedures side by side

The procedure in the notice tells you how many rounds you must win, and how much time you get at the least.

How long do you have in an open procedure?

At least 45 days between the notice and the deadline, and 40 days if the buyer accepts electronic bids (articles 2.71 and 2.74b of the Dutch Act). That is more than the EU directive, which sets 35 days as the minimum. If the buyer announced the contract earlier in a prior information notice, the period can be shorter: down to 29 days, or 24 with electronic bidding. Questions you ask in time must be answered no later than ten days before the deadline (article 2.54). If that does not happen, or if the buyer changes the documents significantly, it must extend the deadline (article 2.73).

In the open procedure everything counts at once. You declare that you meet the requirements, in a European tender in the ESPD, and you submit your full bid at the same time. There are no negotiations. What is on the table at the deadline is what you have.

For your planning, that means roughly six weeks for everything: reading, your bid/no-bid decision, asking questions in the clarification round, writing, pricing, checking and submitting. Your chances depend on how many companies bid, and you do not know that in advance.

What is the difference between an open and a restricted procedure?

In a restricted procedure you must be selected before you may bid. Anyone may apply. The buyer checks the applications against the exclusion grounds and selection criteria, and then uses ranking criteria published in advance to choose who goes through. That is at least five (article 2.99), and in practice often five. The number is stated in the notice.

1. 1ApplyYou have at least 30 days after the notice. You show that you are suitable and score on the ranking criteria. You do not write a plan or a price yet.
2. 2SelectionThe buyer ranks the suitable applications and invites the best. If you do not make it, this is where it ends.
3. 3BidAfter the invitation you have at least 40 days, or 35 with electronic bidding. A buyer that is not a central government authority may set a shorter period if all selected companies agree (article 2.74a).

For your planning, a restricted procedure takes longer and gives you two moments where you can drop out. There is an upside. If you are selected, you compete with a small, known number of companies, and your chance of winning is higher than in an open procedure with an unknown number of bidders. So put real effort into the application: it decides whether you take part.

Read the ranking criteria critically. According to the Dutch Proportionality Guide they may not work as a knock-out, and ranking on size, financial standing or the number of references is discouraged. If you see that anyway, ask a question about it.

When may a buyer negotiate?

Only in a few procedures, and only if the contract calls for it. The competitive procedure with negotiation and the competitive dialogue are allowed, for example, when existing solutions do not work without significant adaptation, when design or innovation is involved, when the specifications cannot be set precisely in advance, or when an earlier open or restricted procedure produced only irregular or unacceptable bids (article 2.28).

• With negotiationInitial bid, then improveAfter at least three companies are selected, you submit an initial bid. It is then negotiated, sometimes in phases in which bidders drop out. Minimum requirements and award criteria are not negotiated. The EU directive lets the buyer award on the initial bid without negotiating, if it reserved that right in advance. So treat your initial bid as your best.
• DialogueFirst the solution, then the priceThe buyer knows what it wants to achieve, but not yet how. At least three selected companies put forward solutions. After the dialogue you bid on the solution discussed. Award is on the best price-quality ratio. The law allows a payment for your costs. Check whether there is one.
• Innovation partnershipDeveloping togetherFor something not yet on the market. A phase with negotiations is followed by research and development, such as a prototype or pilot, and then the purchase. The buyer can work with one or more partners and reduce their number in each phase. You are paid during those phases.

What this means for your planning: after the application period of at least 30 days, the law sets no further minimum time limits for the dialogue and the innovation partnership. The process can take a long time and needs people who take part in discussions, not only people who write. Take that into account when you decide whether to take part.

Can a time limit be shorter?

Yes, after a prior information notice, as above, and in urgent cases. If an urgent situation the buyer did not cause itself makes the normal time limits impossible, it may use the accelerated procedure (article 2.74). In the open procedure you then have at least 15 days to bid. In the restricted procedure and the competitive procedure with negotiation you have at least 15 days to apply, and at least 10 days to bid after the invitation. There is no accelerated version of the dialogue or the innovation partnership.

If you ask, the buyer must give its reasons for the accelerated procedure in writing. If you think the period is too short for the contract, ask for an extension in the clarification round, with a concrete reason.

National and private procedures, briefly

Below the threshold, a Dutch buyer can also publish a notice voluntarily: a national open or restricted procedure, on TenderNed. It may then set shorter time limits than the European ones, as long as they are reasonable, and it states in the notice where it departs from the European procedure. Read those departures carefully.

In a multiple private procedure, the buyer itself invites a few companies, on objective grounds, and awards to the most economically advantageous offer. In a single private procedure it asks one company. There is no notice, so you will not find these on TenderNed. How to get noticed is covered in the article on contracts below the threshold.

How do you see on TenderNed which procedure it is?

In the notice itself. European notices use a fixed list of procedure types, including: open, restricted, competitive procedure with negotiation, competitive dialogue, innovation partnership, negotiated procedure without prior publication, and other single-stage or multi-stage procedures. The buyer picks one. The tender documents then describe exactly how the procedure runs, with the schedule.

1. 1Find the procedure typeIn the procedure details of the notice. How to search TenderNed, the Dutch public procurement platform, and find notices is covered in that article.
2. 2Check for a selection phaseThe notice then also states how many companies the buyer intends to invite (article 2.99), and the first deadline is for an application, not a bid.
3. 3Put the deadlines side by sideThe closing date for applications or bids, the deadline for questions and the award date. Work back to what you must do each week.
4. 4Check the periodIs it shorter than the minimum for this procedure, and does the notice mention neither urgency nor a prior information notice? Then ask about it.

Read the procedure first, then the contract. It decides what you have to do this week.

The time limits in this article come from the Dutch Act as amended on 1 July 2016 (Staatsblad 2016, 241) and PIANOo’s overview of it. If you are in doubt about a specific tender, check the current text of the law on wetten.overheid.nl.