Objection to award decision

Objection to award decision

At the end of the tendering procedure, the contracting authority selects a so-called winner. It is possible that a tenderer disagrees with the selection of the winner. It is therefore possible to lodge an objection against the award.

To lodge an objection against an award decision, summary proceedings must be initiated. The initiation of the summary proceedings must take place during the Alcatel period. This period begins to run from the moment of the award decision and lasts twenty days. It is not possible for a tenderer to initiate proceedings after the expiration of the Alcatel period.

The procurement procedure will be suspended from the moment the summary proceedings are initiated until the moment a ruling is issued by the judge. Our lawyers and legal experts will assess whether the contracting authority acted in accordance with the laws and regulations in a procurement procedure.

Questions about lodging an objection against an award decision? Contact us.

The standstill period (Alcatel period) regarding the award decision

At this stage, the award decision is still a provisional award. Before the contracting authority may definitively award the contract, a standstill period of at least twenty calendar days applies. This standstill or Alcatel period is regulated in Article 2.127 of the Public Procurement Act 2012 and commences on the day after the award decision is sent to all tenderers. The period gives rejected tenderers the opportunity to study the decision and, if necessary, to initiate summary proceedings.

If you institute summary proceedings within the standstill period, the contracting authority may not definitively award the contract until the preliminary relief judge has ruled. If you allow the period to expire unused, you forfeit your right to challenge the award: it is a forfeiture period and not merely a guideline period. Please note: a new or amended award decision usually triggers a new standstill period. Our lawyers and legal experts closely monitor these deadlines so that you never act too late.

When is an objection to the award decision likely to succeed?

Not every objection succeeds. The preliminary relief judge assesses whether the contracting authority has complied with the law and with its own tender documents. An objection against an award decision is generally most likely to succeed in the following situations:

• Deficiencies in reasoning – The award decision must be reasoned in such a way that you can verify the awarded scores. A vague justification such as “the winner offered better” is insufficient; the authority must also explain why you did not achieve the maximum score (Article 2.130 Public Procurement Act 2012).
• Violation of the principle of equality and the principle of transparency – All tenderers must be given equal opportunities and the criteria must be clear and unambiguous in advance (Articles 1.8 and 1.9 of the Public Procurement Act 2012). Assessment against undisclosed criteria or a hidden weighting constitutes grounds for objection.
• The winner does not meet the requirements – If the winning bid proves not to meet a knockout criterion, a suitability requirement, or the requested references, the contract should not have been awarded to this party.
• Incorrect or inconsistent assessment – ​​The assessment committee must follow the previously announced methodology. If it assesses based on its own experience rather than the submitted documents, or if there are calculation or addition errors in the scores, this may lead to a reassessment.
• An unrealistically low tender price – Only the contracting authority can set aside a manipulative or unrealistic tender. As a competitor, you can in principle only challenge a low price if you demonstrate that execution at that price is evidently impossible.

Step-by-step plan: from rejection to summary proceedings

Did you lose the tender? Acting quickly and in a structured manner increases your chances. We will go through the following steps with you:

1. Study the award decision immediately. The twenty-day standstill period is short; the clock is ticking from the moment of dispatch.
2. Request additional justification. You are entitled to an explanation for your rejection. It is not uncommon for calculation or assessment errors to come to light in the process.
3. Check the winning bid. Does the winner meet all the requirements and references? If not, the award may need to be handled differently.
4. Engage legal assistance in a timely manner. Summary proceedings must be initiated within the standstill period. Our procurement specialists assess your chances and, if promising, draft the summons.

In addition to going to the preliminary relief judge, in some cases you can also file a complaint with the contracting authority itself or with the Commission of Procurement Experts. We advise you on the route that yields the best results in your situation.

What can the judge decide?

If you win the summary proceedings, various outcomes are possible. The preliminary relief judge may order the contracting authority to withdraw the award decision, to proceed with a new assessment (re-evaluation), or, in exceptional cases, to award the contract to you. Sometimes, re-tendering proves necessary because the procedure exhibits a material defect. If, despite everything, the contract has already been definitively awarded, compensation may still be claimed under certain circumstances. Which claim is most likely to succeed depends on the nature of the defect and the stage of the proceedings.

Objection to award under procurement law

Objecting to an award decision is one aspect of the broader Public Procurement Law. The outcome often depends on questions that arise earlier in the procedure: did the contract fall under the procurement obligation, do the European threshold amounts, or is it a private tender with its own rules? We examine your case within this full context.

For the group and the baker on the corner

MKB Juristen works with mixed teams of lawyers and in-house counsel. As a result, we combine litigation expertise with practical, commercial advice at a competitive rate. Whether you are an international corporation that narrowly missed out on a multi-million dollar contract, or the local entrepreneur – the baker on the corner – participating in a municipal tender for the first time: we objectively assess whether an objection has a chance of success and act within the strict deadlines. Are you unsure about an award decision? Contact us, and we will review your options together.