Legal Assistance with Tendering Issues

Questioner

The playgroup is looking for a new provider. A presentation will be held by 2 candidates. These are assessed by 5 people, consisting of: 3 members of the parent council, a fellow villager who makes his work of working years and someone of local importance. They choose a provider and both report who the new provider will be. The leader is also informed afterwards. The losing bidder is angry, hires someone (a lawyer who is in taxes) and now they reverse the decision under the guise that procedural errors have been made. The parent committee has now been completely sidelined. Can a unanimous decision, which has already been reported to the candidates concerned, simply be reversed?

Lawyer

What you describe seems like a voluntary, non-mandatory (non-government) tender. In mandatory tenders, the procedure is precise and procedural errors can lead to a failed tender and then the entire procedure must be followed again (correctly). If there is a non-obligatory tender and the 'winner' has already been promised that he will be awarded the contract, then he may hold the contracting authority to the awarded contract and it will not be possible for the contracting party to unilaterally terminate the agreement that has already been concluded and, in my opinion, the 'winner' can claim compensation/loss of income compensation.

Lawyer

As Jan Paul indicates, after the notification to the 'winner' an obligation to award a contract arose, which cannot simply be reversed. Incidentally, the question is whether the 'tender committee' was authorised, and whether this was known to the parties involved or had been made known. Which legal entity is 'De Peuterspeelzaal'? Is it the municipality, the building owner, an association? Please note that continuing a business or establishing a new business will result in two very different procedures at the municipality/GGD.

Questioner

It concerns a takeover/restart The entrepreneur, de Torteltuin, under which the playgroup fell, has terminated the operation. The municipality is ultimately responsible in this matter but has given the parent council the freedom to find a takeover candidate itself. The parent council asked the parents by email whether they could represent them. There was little response from parents. One parent wished them success and another wanted someone of local importance to join. This was complied with by adding a representative to the committee.

Lawyer

Do I understand correctly that you/someone was authorized on behalf of the municipality to make a selection? What exactly was agreed/communicated? That is important. Is the parent council, now that there is no longer a branch, an association with legal personality? Or are the members individually responsible towards the municipality and the possible holder? Who is the 'one' from your first question?

Lawyer

As Martin indicates, it must first be clear who will ultimately be the legal counterparty of the entrepreneur who will 'operate' the playgroup. I estimate that this will be the municipality. Then it will be a question of whether / how the municipality should award the exploitation of this type of activities to market parties. If this is done via a 'tender procedure', it must be taken into account that a municipality must, on the basis of general principles of good governance, handle the tender procedurally correctly and that the tender will fail if the procedure is not followed correctly. My assessment is that in this matter the municipality may have been too light-hearted about how the new operator should ultimately be selected and that 'they' (the municipality?) have now come to the conclusion that the tender failed due to procedural errors and must be redone.