International Construction Law Review
A NEW PROCUREMENT ACT IN THE NETHERLANDS
PROFESSOR DR G W A VAN DE MEENT
LL M, Attorney-at-Law
AND
R S DAMSMA
LL M, Attorney-at-Law
1
1. THE PROCUREMENT ACT: THE ARRIVAL OF AN INTEGRAL LEGISLATION PACKAGE FOR PUBLIC PROCUREMENT IN THE NETHERLANDS
On 30 October 2012, the Dutch Senate adopted the proposal for the Procurement Act 2012 (hereinafter: the “Procurement Act”). That vote has given The Netherlands its first integral procurement law. The Procurement Act (and the underlying Procurement Decree) came into force on 1 April 2013.2 At the same time, all prior legislation governing procurement was rescinded. It signifies the end of an extraordinary legislative procedure that took many years to complete, due in part to the rejection by the Senate in 2008 of an earlier version of the Procurement Act. That version, it must be said, was very different from the current Act.
The creation of an integral procurement law in The Netherlands is nothing short of revolutionary. Until 2005, in fact, The Netherlands had no substantive national procurement legislation at all. The Procurement Directives applicable at the time were implemented by means of a direct reference to these Directives.3 That changed with the introduction of the current Procurement Directives 2004/17/EC (hereinafter: the Utilities Directive) and 2004/18/EC (hereinafter: the Public Sector Directive). In 2005, these Directives were implemented with the adoption of the Public Procurement Decree (Bao)4 and the Procurement Special Sectors Decree.5 These Decrees, however, faithfully mirrored the Directives as regards struc-
1 Gert-Wim van de Meent and Redmar Damsma are Attorneys-at-Law and members of Loyens & Loeff NV’s procurement team in Amsterdam.
2 See the letter of 1 December 2012 from the Minister of Economic Affairs, Agriculture and Innovation to the Chairman of the Senate, Parliamentary Documents (Parl Docs), I 2012/13, 32 440, No N.
3 Tenders (EEC Regulations) Framework Act of 31 March 1993, Bulletin of Acts and Decrees (BAD) 1993, 212 and 213. Decree of 4 June 1993, BAD 1993, 305 and repealed by Decree of 16 July 2005, BAD 2005, 408 (Public Procurement Decree), Decree of 6 April 1993, BAD 1993, 214 and repealed by Decree of 16 July 2005, BAD 2005, 409 (Utilities Tendering Decree).
4 Decree of 16 July 2005, BAD 2005, 408, as most recently amended by Decree of 5 July 2008, BAD 2008, 295.
5 Decree of 16 July 2005 (“Bass”), BAD 2005 409, as recently amended by Decree of 5 July 2008, BAD 2008, 248 (Tendering (Special Sectors) Decree).
The International Construction Law Review [2013
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