Tendering in the social domain

What we do

Tendering is a specific method of purchasing. Tendering is a balancing act between entering into a contract with a suitable contracting partner for the most appropriate product (service/work) at the most advantageous price, where the price-quality ratio is an important factor. This is particularly important in the healthcare sector.

By awarding public contracts, the government stimulates competition between companies and organizations. Moreover, competitive bidding is a fair way to organize public tenders. All interested parties have an equal opportunity to complete the task.

Procurement within the social domain: the legal framework

Procurement in the social domain revolves around the way municipalities purchase support, care, and assistance for their residents. Municipalities are responsible for the implementation of the Social Support Act (Wmo 2015), the Youth Act , and the Participation Act, as well as the Civic Integration Act. As soon as a municipality puts these tasks out to tender, the Public Procurement Act 2012 may apply. Therefore, purchasing social support, youth care, and reintegration is not only a matter of policy but also a legal balancing act in which the procurement principles of transparency, equal treatment, and proportionality must be safeguarded.

At MKB Juristen, lawyers and in-house counsel work together in mixed teams. This enables us to assist municipalities or healthcare institutions as well as individual care providers: from a national care chain to the small, local home care provider around the corner. This page falls under our Social Domain.

SAS procedure: the simplified regime for social and other specific services

Services in the field of healthcare and social services generally qualify as social and other specific services (SAS services). A simplified procurement regime applies to these services. Above the European threshold amount for SAS services of €750,000, a European tender is mandatory, but the municipality may opt for the simplified SAS procedure of Articles 2.38 and 2.58a of the Public Procurement Act 2012 (based on Article 74 et seq. of Directive 2014/24/EU), instead of one of the regular European procedures.

Below the threshold amount, there is no European tendering obligation, but the general principles of procurement law and the Proportionality Guide remain relevant. The municipality must then establish a proportionate and transparent procedure. We advise municipalities on setting up the correct procedure and assist care providers who believe that a procedure is unlawful or disproportionate.

Open House: purchasing without a tender

In the social domain, the Open House model is chosen relatively frequently. Under this model, the municipality establishes minimum requirements and enters into an agreement with every provider that meets those requirements; the resident then chooses a provider themselves. Because no selection takes place between bids, the Court of Justice of the European Union (Tirkkonen judgment) ruled that this does not constitute a public contract and therefore not a procedure subject to tendering requirements.

Open House offers considerable freedom of choice but provides the municipality with little control and often leads to a large number of contracted providers. The choice between Open House, tendering, or subsidy therefore has significant legal and administrative consequences. Our legal experts assist in making that choice and drafting the associated agreements; see also our page on contracts in the social domain.

Subsidy or procurement?

A common question is whether a municipality must purchase youth care or social support via a tender process or can finance it through a subsidy. The granting of subsidies falls outside procurement law, as no enforceable obligation to perform and no public contract arises. Purchasing, however, does create a public contract with mutual obligations. The choice determines the degree of control, cost certainty, and applicable legal protection. An incorrect classification can lead to an unlawful tender and liability. We assess on a case-by-case basis which route is legally sound and best aligns with the policy objective.

Legislative amendment as of July 1, 2024: EMVI obligation abolished

With the Socially Responsible Procurement Act (Jeugdwet) and the Wmo 2015, the obligation to award contracts based on the economically most advantageous tender (MEAT) has been abolished as of July 1, 2024. Specifically, Article 2.11 of the Jeugdwet and Article 2.6.4 of the Wmo 2015 have been repealed in this regard. As a result, municipalities can use other award criteria and are no longer required to apply a full MEAT methodology. This reduces the administrative burden of tenders in the social domain but requires careful substantiation of the chosen criteria. We are closely monitoring these developments and translating them into concrete procurement strategies.

Fair price: protection of quality and working conditions

When purchasing Wmo support, the municipality must apply a fair price as a minimum rate. This follows from Article 2.6.6 of the Wmo 2015 and the General Administrative Order based thereon (AMvB Fair Price Wmo 2015). The fair price takes into account, among other things, personnel costs, overhead, and training costs. A comparable standard applies under the Youth Act. For care providers, this is an important reference point to ensure that rates are cost-covering; for municipalities, it is an obligation intended to safeguard the quality and continuity of care. We assist both sides in discussions regarding the level and substantiation of rates.

Frequently asked questions about tenders in the social domain

Does a municipality always have to tender youth care and Wmo support?
No. A municipality can choose between tendering, the Open House model, or a subsidy. Which route is permitted depends on the nature of the assignment and the desired degree of control.

What is a SAS procedure?
The SAS procedure is the simplified procurement regime for social and other specific services (Articles 2.38 and 2.58a of the Public Procurement Act 2012). It applies, among other things, to care and welfare services above the threshold amount of €750,000.

What changed on July 1, 2024?
The obligation to award based on the economically most advantageous tender (MEAT) has been abolished; Article 2.11 of the Youth Act and Article 2.6.4 of the Wmo 2015 have been deleted in this regard.

Need help with a tender in the social domain?

Whether you are a municipality looking to start a procurement process, a large care chain submitting a bid, or a small local provider with questions about a procedure: our lawyers and in-house counsel will think along with you. We serve everyone, from international corporations to the baker on the corner. Feel free to contact us for a no-obligation discussion about your procurement issue in the social domain.