Participation of European and non-European companies in Dutch government tenders

The Netherlands is one of the most accessible procurement markets in Europe. Each year, thousands of tenders are published on the Dutch procurement platform TenderNed, ranging from complex construction, infrastructure and engineering projects to large IT and SaaS contracts. This market attracts an increasing number of foreign companies, partly because the Netherlands strictly applies European procurement rules and is open to so-called GPA countries outside the EU.

Recent examples of large scale government contracts awarded include the tender of the Dutch Tax and Customs Administration announced a framework agreement for IT staffing, system development and technical expertise with a contract value of over EUR 1 billion. Foreign companies are prominently featured here, partly due to the shortage of Dutch IT specialists. Another example was a multi-year framework agreement by Schiphol Group for IT and data services, with a value of approximately EUR 200 million.

These examples show that foreign companies have ample opportunities to compete for interesting contracts in the Netherlands. At the same time, they must take into account practical challenges.

EU companies and the Government Procurement Agreement

For companies from EU member states, European procurement law applies, which is incorporated in the Netherlands in the Public Procurement Act 2012 (Aanbestedingswet 2012). These rules guarantee that European companies have the same opportunities as Dutch companies.

However, companies from countries outside the EU can also participate in Dutch public tenders if their country is a party to the WTO Government Procurement Agreement (“GPA”). The GPA allows for companies from participating countries to participate in each other’s tenders for government contracts, if the contract falls within the scope of the agreement. The GPA also stipulates that admission requirements may not go further than necessary to assess whether a foreign company is suitable.

What challenges do foreign companies face when participating in Dutch public procurement?

Although the Dutch procurement market is open for foreign submissions, there may be challenges in practice. Language can be one of them. Most procurement documents are published exclusively in Dutch, and although large contracts sometimes may have English-language documentation, this is not self-evident. Foreign companies must therefore be able to fully understand documentation, prepare legally correct submissions and communicate effectively with Dutch contracting authorities.

In addition, Dutch contracting authorities regularly impose specific certification or qualification requirements on participants, such as specific safety certification in construction (VCA-certificates) or strict ISO standards for IT contracts. The GPA obliges Dutch contract authorities to accept equivalent foreign certificates, but the process of demonstrating that equivalence can be complicated without the support of a Dutch procurement specialist.

Another important issue concerns the suitability requirements imposed on participants. Dutch contracting authorities regularly set suitability requirements relating to professional competence, by asking evidence of experience with comparable (government) contracts. Foreign companies may address these requirements by collaborating with Dutch companies through various forms of cooperation, such as joint ventures, consortia or subcontracting arrangements. According to Dutch procurement case law, a contracting authority may not exclude a company purely because it relies on the resources or experience of a third party, such as a local partner or subcontractor, to meet the required qualifications. This means that the necessary experience is not required to be held in-house, but may be demonstrated through reliance on a cooperation partner.

Conclusion

With a careful strategy, timely preparation and the right partners, the Netherlands represents a very attractive market for foreign companies wishing to actively compete for public contracts.

Van Till has specialist procurement lawyers with extensive experience in advising companies on participation in Dutch government tenders. In addition, we have a broad network, including professional copywriters, tender managers and advisers. If you have any questions about participating in tenders from Dutch government institutions, please feel free to contact us via j.overdijk@vantill.nl.