Competition & Tendering
The purpose of both competition law and procurement law is to create a level playing field for as many market parties as possible. It is a sector in which Legaltree has gained extensive experience.
Competition law is about cartel violations, or preventing these, merger control by the ACM and the European Commission and the prohibition against the abuse of a dominant position. Legaltree’s lawyers not only act as your advisers, but also assist you in legal proceedings. A large part of our work consists of advising companies with a view to avoiding competition law problems.
We do this in a pragmatic way: either we provide you with a solution or we give you clear advice. We also provide assistance to companies in proceedings against decisions by the ACM and advise them prior to or during dawn raids (unannounced investigations by the ACM). We have experience in notifying the ACM of mergers and regularly advise on vertical agreements (distribution, franchise and agencies), non-compete clauses, joint development and compliance with competition law.
Clients
Among the practice group’s clients are contracting authorities (such as municipalities), care institutions, manufacturing companies, producers, importers, distributors, enterprises in the cultural sector, energy companies and agricultural enterprises.
Competition law
In order to safeguard fair competition, the Competition Act was introduced in 1998. It is the duty of the Netherlands Authority for Consumers & Markets (the ‘ACM’) to supervise compliance with the competition rules.
Competition law defines the limits imposed on the extent of cooperation between companies and prohibits cartels and abuse of dominant positions. In addition, the law sometimes requires that the ACM is notified of proposed mergers, takeovers or joint ventures, while a ban of state aid may be in place. Breaches of competition rules may be subject to high fines, while agreements made in violation of the competition rules will be void. Anyone taking part in a cartel may be faced with claims for damages from customers.
It is therefore wise to be very strict where compliance with competition rules is concerned. In addition it should be borne in mind that competition law also provides rules for, for example, agreements on exclusive cooperation, non-competition clauses, distribution, franchising, agencies and supply schemes.
Legaltree advises on competition law and assists enterprises in proceedings against the ACM and other disputes involving competition law. We have experience in the notification of mergers and regularly advise and litigate on cartel fines, cooperation between enterprises, cartel damages, compliance, abuse of a dominant position and prohibited state aid.
Procurement law
Annually, the government is involved in purchase transactions to a value in excess of EUR 57 billion. When investments exceed a certain amount, the European rules on tendering apply, in particular the European directives 2004/17/EC and 2004/18/EC. The main purpose of these rules is to create an internal market for public contracts within the European Union. In addition, a tender provides all candidates with a fair chance to be awarded the contract.
The rules on tendering apply to public contracts for works, supplies and services.
A selection of the parties that are obliged to tender
- the state
- municipalities, provinces and water boards
- public-law institutions (such as universities and schools)
- companies that are active in particular sectors, such as airports and seaports, energy companies, water companies and the postal service
Thresholds
European directives determine the amount above which authorities must put out a European contract to tender. The amount of the threshold depends on the type of contract (for works, supplies or services). These thresholds are set once every two years.
Publication
Contracts above the European threshold must be published in advance in the European Official Journal. Contracts may also be viewed on the Tenders Electronic Daily, thus enabling any company from any EU Member State to tender for the contract. No European tender procedure has to be complied with by the public authorities for contracts below the thresholds, but such national tenders are nevertheless governed by the procurement law principles of equality, transparency, proportionality and non-discrimination.
This means that:
- tenderers must be treated equally
- the tender procedure applied must be clear and verifiable
- with pre-determined requirements and criteria
- which must be interpreted and applied in the same way, both during and after the tender procedure
The requirements and criteria must also be proportionate to the nature and scope of the contract, while the contract must be appropriately published.
Practice
Legaltree’s procurement lawyers work for both contracting authorities and for tenderers. For a contracting authority this may, for example, consist in drafting the tender specifications and/or the award guidelines and helping to think about suitable requirements and criteria. The implementation of new elements, such as social criteria or sustainability, may also be a reason to engage one of our specialists.
We assist tenderers in asking the right questions in the event that certain aspects of a tender are not clear or in going through a tender: have all the relevant requirements been met?
Legal protection
Legal protection is an integral part of every tender procedure. The letter containing the intention to award the contract generally mentions a period of 15 days. Within that period a tenderer who disagrees with the intention to award a contract must institute preliminary relief proceedings, so as to put its objections before the court. A complainant needs a lawyer, or procurement lawyer, for this purpose.
After it has received the summons for preliminary relief proceedings, the contracting authority will likewise engage a lawyer to have the matter examined and to put forward a defence at the hearing. In these proceedings the interests of a third party, the party to which the contract has been awarded, also play a role, causing that party to also become involved in the proceedings between the complainant and the contracting authority. Legaltree can offer assistance in all these cases.
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