Public procurement law is relevant in all forms of care procurement. Whether it be care procurement by municipalities, ministries, care administration offices or insurers, procurement law plays an important role in the relationship between buyer and seller. As contracting authorities, ministries, care administration offices and municipalities are required to follow a tendering procedure. In doing so, they may opt for the regular procurement procedure under Article 2.25 of the Public Procurement Act or for the simplified procurement procedure for social and other specific services under Article 2.39 of the Public Procurement Act.
Contracting authorities also regularly use procurement procedures that do not fall under the scope of the Public Procurement Act (see this blog), such as administrative procurement, the Open House method or the Zeeuws model. The procurement principles nevertheless apply in those procedures. In the case of private procurement, purchasers, such as insurers, cannot simply escape the principles of procurement law either. This blog addresses the consequences of these principles and translates these into specific tips for tenderers in healthcare procurement procedures.
The principles of procurement law
The three key principles of procurement law are the principles of equal treatment, transparency and proportionality.
First, a contracting authority must treat tenderers equally. Specifically, the principle of equal treatment means that the same rules must be applied to all tenderers. A tender that does not meet the stipulated conditions must therefore be excluded from further participation, for instance in the event of late submission of the tender, or if the tender is incomplete. The latter also depends on the procedural rules set out in the tender documents.
The principle of transparency (see, for instance, recital 111 of the European Court of Justice’s judgement regarding Suchi di Frutta) has two dimensions. On the one hand, all the conditions of the tender must be formulated beforehand in a clear, precise and unequivocal manner, to ensure that the scope of the tender is clear to all reasonably informed tenderers exercising ordinary care. On the other hand, the principle of transparency allows the contracting authority to verify in due course whether the tenders submitted meet the stipulated requirements.
The principle of proportionality requires that the conditions of the tender are reasonably proportionate to the nature and scope of the contract. This relates to the choice of the procedure, but also to the deadlines applied, the reference requirements set and the contract conditions, all of which as set out in more detail in the Proportionality Guide.
In the case of private procurement, for example by health insurers, the procurement principles apply unless they are expressly excluded and the purchaser does not act as a contracting authority. The fact that a tender procedure has all the characteristics of a public procurement procedure is an important indication for the existence of the legitimate expectation that the procurement principles apply (see this ruling of the Court of Den Haag).
Tips for tenderers in healthcare procurement procedures
1) Preparing the procurement? Be proactive!
Many contracting authorities conduct a market survey or market consultation before issuing a call for tenders. In the healthcare sector, a cost survey is often carried out. It is during those preparations that healthcare providers can exert influence on the contract and the call for tenders that the contracting authority intends to issue. If a contracting authority chooses this option, it is therefore of the utmost importance that providers make sure that that survey is carried out correctly and, if that is not the case, that they call the contracting authority to account in time.
2) Start in good time
Bear in mind that healthcare procurement procedures take a great deal of time, but that collecting the right evidence for the tender can be even more time-consuming: when tendering for a contract, a range of evidence must be provided, as follows, for instance, from the completion of the European Single Procurement Document. That evidence may include a Chamber of Commerce extract, but also statements by the Tax Administration and a Certificate of Conduct for Procurement (known as a GVA in the Netherlands). This may take several weeks, which should be borne in mind when issuing a call for tenders.
3) Any questions? Be proactive!
If you have any questions about the tender documents, for instance regarding the substantive requirements or procedural organisation, you should present them to the contracting authority in good time. It is important to ask questions yourself rather than to assume that another tenderer will ask them. It is advisable to suggest possible answers and solutions immediately, so that a contracting authority can make corrections in time. If the contracting authority refuses to do so, you have the option of discussing the matter and finding a solution.
4) Objections? Be proactive!
If you object to substantive or procedural elements of the procurement procedure, such as incorrect quality requirements, the rate applied, the justification given for that rate, or disproportionate administrative requirements, it is advisable to make them known as soon as possible. Once more, it is advisable to put forward possible answers and solutions immediately, so that a contracting authority can make corrections in good time. See our earlier blog on this subject.
5) Sitting by idly leads to forfeiture of rights?
As a tenderer, you are required to be proactive and to raise any objections you may have as soon as possible. You may not bide your time by awaiting the outcome of the procurement procedure: you would then forfeit your rights. In practice, the court would then not assess the merits of the tenderer’s objections to the procurement procedure, because the tenderer is “out of time” and should have come forward earlier.
NB: asking questions cannot be equated with filing an objection. To avoid any risk, questions can be asked in the Summary of Additional Information and Changes and an objection can be raised in a separate letter or notice to the contracting authority. Sitting by idly until after the provisional award decision is in any event not advisable.
In sum, if you as a healthcare provider have raised questions but the contracting authority is not sufficiently accommodating, you must in certain cases (depending on the subject of the objection and the procedural conditions) file an objection and issue a summons before the registration deadline.
The above is, of course, without prejudice to your right to object to the outcome of the tendering procedure, for instance if you believe that you have been excluded from a contract on unreasonable grounds. If you wish to object to the assessment of the tenders or the substantive arguments in the award decision, you have a period of 20 calendar days to make your objections known in tender procedures within the scope of the Public Procurement Act. You must do so by instituting preliminary relief proceedings before the competent court.
6) Check, check and double check before submitting your tender
To err is human, but in public procurement law simple errors may have serious consequences, such as exclusion of the healthcare provider in question or invalidity of the tender.
In light of the procurement principles of equal treatment and transparency, the contracting authority must comply with the requirements and conditions set in advance in the tender documents. In principle, a tender therefore cannot be changed once it has been submitted.
The principle of equal treatment “does not preclude, in particular, the correction or amplification of details of a tender where appropriate, on an exceptional basis, particularly when it is clear that they require mere clarification, or to correct obvious material errors, provided that such amendment does not in reality lead to the submission of a new tender.” The contracting authority may then raise verification questions and allow the tenderer in question to correct its tender.
The contracting authority does not have this power, however, if it has itself imposed certain sanctions in the tender documents beforehand for missing or incorrect information in the tender. The consequence of the error set out in the tender conditions may then not be ignored, no matter how proportional and reasonable it may seem.
Extra care must therefore be taken before tender documents are submitted: prevention is better than cure.
More information on sustainable procurement or tendering can be found at innovatiepartnerschap.info.
More information on the rights of healthcare providers in healthcare contracting and their trade associations’ means of supporting them can be found at zorgcontractering.com.
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