Critical scientific review of the bill to amend the Dutch Public Procurement Act

Last week, Fredo Schotanus (Utrecht University) and Chris Jansen (VU University Amsterdam) spoke with members of the House of Representatives about the bill to amend the Dutch Public Procurement Act (aimed at improving legal protection). Commissioned by the House of Representatives, they carried out a science test and advised not to continue with the current bill. In the opinion of the researchers, the current proposal does not contribute to a fundamental enforcement of legal protection for entrepreneurs in government tenders. It focuses mainly on complaint handling – and they also have reservations about this.

Fredo Schotanus
Fredo Schotanus

During a roundtable discussion on Wednesday 13 May with members of the House of Representatives Committee for Economic Affairs, Schotanus and Jansen presented the results of the so-called science test that they have carried out. The science test was carried out as part of a Parliament and Science initiative, which aims to structurally involve scientific insights in the assessment of legislation.

Critical assessment of contribution to legal protection

The researchers conclude that the current bill to amend the Public Procurement Act does not contribute to a fundamental enforcement of legal protection for entrepreneurs participating in government tenders. The proposal focuses mainly on complaint handling, while according to them, complaint handling is not a form of legal protection, because complaint bodies cannot assign binding remedies.

Doubts about feasibility and side effects

In addition, they have reservations about the contribution to better complaint handling. This is limited, in parts possibly even negative and insufficiently substantiated. Schotanus and Jansen have serious doubts about the feasibility of parts of the bill. They also identify possible side effects, such as longer lead times for tenders and risk-averse purchasing behaviour.

Recommendations for the follow-up

Based on their analysis, the researchers make several recommendations to the House of Representatives:
 

  • Refrain from continuing the bill in its current form.
  • Strengthen the Committee of Tender Experts in advance, so that complaints can be dealt with within fourteen days.
  • Increase transparency about compliance with advice from the Committee.
  • Explore how the handling of complaints about tenders at the decentralized level can be better handled.
  • Promote consultation and cooperation between the government involved, entrepreneurs and the Committee.
  • Start additional research into the design of a coherent system of legal protection and work towards a new bill.

More information

For more information, read the science test or watch the roundtable discussion with the House of Representatives. Or contact Fredo Schotanus: f.schotanus@uu.nl.

Read the science test (pdf, in Dutch)
Watch the roundtable discussion here (video on website)