In a recently published judgment of 1 June 2011, the District Court of The Hague found that contracting party HTM Personenvervoer N.V. (a public transport company for the The Hague region) had insufficiently justified their procurement award decision and that it would be unreasonable if a new award decision would be issued without a new ‘Alcatel deadline.’ The ‘Alcatel deadline’ is a mandatory 15 day stand-still period introduced by the Court of Justice of the European Union (ECJ) in its ‘Alcatel judgment’ (C-81/89) of 1999 which enables third parties to request nullification of an award decision before the decision is made final. After the ‘Alcatel judgment’, this stand-still period was laid down in the Public Procurement Decree and the Public Procurement Decree for special sectors. The latter Decree is applicable in this case.

The claimant in the interlocutory proceedings was the unsuccessful tenderer Construcciones y Auxiliar de Ferrocarriles S.A. (“CAF”). CAF raised objections to the transparency of the award criteria and the justification of the award decision. The contracting party HTM had announced the award criteria and the subcriteria, but had failed to disclose the related assessment factors. Instead, the assessment factors had remained in the custody of a civillaw notary. Despite CAF’s request, HTM had refused to disclose the assessment factors. Furthermore, CAF argued that HTM had modified the award criteria upon announcement.  

In its judgment, the Court ruled that HTM should re-assess the tenders of the tenderers based on the initially announced award criteria. First, it held that securing objectivity by depositing information at a civil-law notary was insufficient, because it did not result in transparency, in such a way that it allowed tenderers to take the assessment factors into account when drawing up their tenders. Second, it held that it was not allowed to make interim changes to the award criteria and the assessment criteria after they were announced.  

The subsequent renewed award decision required a new 15 days stand-still period. (FF)  

This case can be found on, LJN=BQ6916