Stretching the Proportionality Principle: How Dutch Law Facilitates the Participation of SMEs in Public Procurement

Chris Jansen*

*Corresponding author for this work

Research output: Contribution to JournalArticleAcademicpeer-review

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Abstract

One of the objectives of Directive 2014/24/EU is to facilitate the participation of SMEs in public procurement. Although the realisation of this objective very much depends on the decisions taken by contracting authorities when designing their procurement procedures, the provisions of the Directive offer them little guidance in that regard. This article explains how the Dutch legislator has tried to fill that gap by means of a Proportionality Guide based on the Dutch Public Procurement Act. The Guide provides contracting authorities with best practices and rules explaining how to act in a proportionate manner when deciding on important topics such as time limits, selection criteria, contract terms and conditions, aggregation of contracts, and the type of procurement procedure to apply. This article argues that, in doing so, both the Act and the Guide give a (too) broad interpretation to the proportionality principle. Although this interpretation raises questions from an EU law perspective, it is submitted that it does not conflict with EU law, nor does it lead to significant problems in Dutch procurement practice.

Original languageEnglish
Pages (from-to)214-238
Number of pages25
JournalPublic Procurement Law Review
Volume2022
Issue number4
Publication statusPublished - Jun 2022

Bibliographical note

Publisher Copyright:
© 2022, Sweet and Maxwell Ltd. All rights reserved.

Keywords

  • EU law
  • Netherlands
  • Proportionality
  • Public procurement
  • Small and medium-sized enterprises

VU Research Profile

  • Governance for Society

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