Extra-Judicial Complaints Review: First Experiences of the Dutch Public Procurement Experts Committee

Article 4.27 of the Dutch Public Procurement Act 2012 (‘Aanbestedingswet’) provides for a statutory basis for extra-judicial public procurement complaints review by an independent body: The Public Procurement Experts Committee (‘Commissie van Aanbestedingsexperts’), hereinafter referred to as: ‘the Committee’. This statutory-based extra-judicial complaints review board does not substitute the system of judicial review of public procurement cases by the ordinary courts. Neither does it prevent a complainant from bringing his complaint before the court at any stage of the public procurement process, whether or not the Committee has been addressed beforehand. The main objective of offering extra-judicial complaints review is to lower the threshold for complainants – particularly SME’s – who encounter difficulties in bringing their complaints before the ordinary courts. This objective is mainly achieved by issuing – free of charge – non-binding opinions on complaints. In addition, rather than being an alternative to judicial review by the ordinary courts, complaints review by the Committee is intended as a means to deal with public procurement complaints in a satisfactory manner before court proceedings, if any, are started.

The Committee became operational on 1 April 2013, when the Dutch Public Procurement Act 2012 entered into effect. The Committee received 70 complaints in the period from 1 April 2013 to 1 March 2014. The objective of this paper is to provide the reader with information on the purpose and the organisation of the Committee, and to explain the design of the Committee’s complaints procedure. In doing so, we will share the experiences we have gained with this procedure so far, by providing data regarding complaints that were received and processed by the Committee. We will conclude this paper by making some observations regarding the practical impact the Committee seems to have had in its first year of existence.