Exceptions to the tendering obligation

Contracts above the European tender thresholds

Contracts whose estimated contract value exceeds the European procurement threshold (see section 2.4 of this policy for an overview of the European procurement thresholds), known as 'above-thresholdcontracts', must be put out to tender at European level in accordance with the 2012 Procurement Act. However, there are contracts which, despite the fact that their estimated value exceeds the applicable European procurement threshold, do not have to be put out to tender at European level under the 2012 Procurement Act. These legal exceptions to the procurement obligation mainly concern: 

  • certain public service contracts that fall outside the scope of the European procurement directives, for example:
    • contracts awarded to another contracting authority on the basis of an exclusive right;
    • assignments relating to arbitration and mediation;
    • certain contracts in the field of research and development (public service contracts, as included in Article 2.24 of the Public Procurement Act 2012).
    • quasi-in-house contracts (quasi-insourcing) (public contracts, as included in Articles 2.24a and 2.24b of the Public Procurement Act 2012);
  • contracts awarded in the context of horizontal cooperation between contracting authorities (public contracts, as referred to in Article 2.24c of the Aw 2012).

In addition, there are contracts where, as an exception, the so-called negotiated procedure without prior publication (public contracts, as included in Articles 2.32 to 2.37 (section 2.2.1.7) of the Aw 2012) may be used instead of a regular European tendering procedure. An example of this is the exception to be applied with restraint (Article 2.32(1)(b) in conjunction with (2)), whereby competition is lacking for technical reasons, as a result of which only one company can perform the contract. 

The application of a legal exemption to the tendering obligation for a contract with an estimated contract value above the European tendering thresholds must be assessed by the Procurement & CSR cluster and submitted to the MAT. 

Contracts below the European tender thresholds

Contracts with an estimated contract value below the European procurement threshold, known as 'below-threshold contracts', must in principle be put out to tender in accordance with the prescribed procurement procedures, namely: single private contract, multiple private contracts, or national contract. In exceptional cases, it is possible to deviate from the application of these procurement procedures. A distinction is made between three different powers of derogation.

Power to deviate: applying a more stringent procedure 

This derogation authority concerns the application of a 'more stringent' tendering procedure than that prescribed in section 2.4. An example of this is that a public contract for services with an estimated contract value of €200,000.00 excluding VAT is not tendered on the basis of a multiple private tender, but on the basis of a European public (or non-public) tender. The application of a more stringent procedure is only permitted if this is considered proportionate on the basis of the Proportionality Guide, which must be assessed in advance and approved by the Procurement & CSR cluster. 

Power to deviate: applying a lighter procedure on the basis of an exception

In the following situations, it is possible to deviate from the tendering obligation for contracts estimated below European tendering thresholds. 

  1. If, on the basis of the Public Procurement Act, there is no obligation to tender for contracts above the European threshold (as referred to in, among others, Article 2.24(g) and 2.24a to 2.24c of the Public Procurement Act 2012), then there is also no obligation to tender for contracts below the European threshold. In this case, single contracts may be awarded by private treaty.
  2. If a negotiated procedure without prior publication is possible under the Public Procurement Act (as referred to in Articles 2.32 and 2.33 of the 2012 Public Procurement Act, among others), this may also apply to contracts below the European threshold, provided that the situation is indeed similar. If competition is lacking for technical reasons (Article 2.32 Aw, first paragraph, part b, under 2°), this must be substantiated by a prior market consultation (see section 2.2), followed by a voluntary transparency publication on TenderNed. In the case of compelling urgency (Art. 2.32 Aw, first paragraph, part c), HHNK refers to 'circumstances other than those arising from its own negligence and where failure to award a contract immediately would cause damage that cannot be prevented or limited in any other way'.
  3. If, on the basis of the Public Procurement Act, a contract can be reserved for a company that complies with Article 2.82 Aw (social workshops), this is also possible for contracts below the European threshold and single contracts can be awarded privately for this purpose, provided that the company can demonstrate that its main objective is the social and professional (re)integration of disabled or disadvantaged persons as its primary objective, for example by including this in its articles of association or by holding a valid PSO 30+ certificate.
  4. For social and other specific services (SAS), the water board applies the single procedure up to the European threshold amount for services. Above this threshold amount, up to the EU threshold amount for social and other specific services of €750,000, multiple private contracts must in principle be used.
  5. A Private Initiative (a concrete business proposal developed by a private party to solve an existing problem at the water authority (goods, services, or processes), which the water authority has not requested itself, and which offers added value to the water authority) with an estimated contract value below the European threshold amounts can be awarded directly to the submitter by HHNK, without the need to follow a (multiple) private or national procedure. The conditions and rules for this have been set out in a separate policy and made available to the market on our website, seeInnovation Desk.
  6. When a contract with a total value above a European threshold amount is divided into lots, and one or more lots can be exempted (Art. 2.18 Aw or 2.19 Aw), these lots may be awarded directly to a party of your choice, regardless of their estimated value.

The application of a lighter procedure based on one of the aforementioned grounds for exemption is only permitted if this has been assessed in advance and approved by the Procurement & CSR cluster. In such cases, advice must also be sought from the Market Advisory Team. 

Power to deviate: applying a lighter procedure without grounds for exception

This power of derogation involves applying a lighter tendering procedure than that prescribed in section 2.4, whereby none of the grounds for exemption listed under power of derogation 2 can be invoked. This power should be exercised with restraint. The decision-making authority in this regard lies with the members of the HHNK management board. To ensure that the application of the power to deviate is handled in a uniform manner within HHNK, a deviation by a member of the management board will only take place after consultation within the HHNK management board. The proposal to the board must be properly substantiated and accompanied by a procurement law opinion from the Procurement & CSR cluster, which is based on the provisions of the Proportionality Guide (in particular provision 3.4A). In such cases, advice must also be sought from the Market Advisory Team. 

The answer to the question of whether a lighter tendering procedure is proportionate in the case in question depends primarily on the following aspects: 

  • the scope of the assignment;
  • the transaction costs for both the contracting authority and the tenderers;
  • the number of potential bidders;
  • the desired end result;
  • the complexity of the assignment;
  • the type of assignment and the nature of the market. 

The above list from the Proportionality Guide is not exhaustive. The decision to make use of the discretionary power may also be based on other valid arguments, such as: 

  • the need for uninterrupted continuation of business operations;
  • organization and privacy confidential topics, such as mobility programs, job-to-job assignments, recruitment and selection assignments;
  • purchase of goods that are uniquely offered as second-hand;
  • carrying out work on third-party sites that are important to HHNK's primary tasks (such as the construction of watercourses or water storage projects) but where HHNK does not act as a contracting party to the contractor.