For public buyers, every new project starts with the same question: do we need to tender for this project, and if so, how? The obligation to tender often feels more complex than it needs to, because the rules are spread across thresholds, legislation and case law. In this early orientation phase, what you need is an overview; the exceptions come later. In this article we explain step by step when the obligation to tender applies and how you justify your decision. The aim is to create clarity before any procedure choices are made.
What does the obligation to tender mean?
A contracting authority, such as a government body or a public institution, is in certain circumstances required to make a contract public and put it out to the market according to set rules. This is laid down in the Aanbestedingswet 2012 (the Dutch Public Procurement Act) and in the European directives. Is every government contract automatically subject to the obligation to tender? No. The obligation to tender is the legal consequence of a number of choices.
Who does the obligation to tender apply to?
The obligation to tender reaches further than government in the general sense. Municipalities, provinces, ministries and water authorities almost always fall under it, and so do bodies governed by public law and some semi-public organisations. The question of who is required to tender must always be answered before the question of when you need to tender. In practice this step is often skipped, with risks as a result. It is no matter of interpretation: you can and must establish it formally and verifiably. The legal basis for this is the Aanbestedingswet 2012. For doubtful cases, such as foundations and educational and healthcare institutions, Europa Decentraal (the Dutch knowledge centre on EU law for public authorities) is the source for the grey areas.
When do you need to tender? The core criteria
The combination of the following three factors determines whether or not you need to tender:
The nature of the contract
The estimated value
The position of the contracting party
The obligation to tender only arises when these three factors come together. The amount or the type of contract alone does not decide it.
Common misconceptions about the obligation to tender
In practice, stubborn assumptions persist, such as “below the threshold there is no obligation to tender” or “invitation-only means no rules”. These misconceptions lead to risks, complaints and even legal proceedings. The obligation to tender is a legal framework that calls for context; it is rarely black and white. Naming these misunderstandings explicitly gives you a firmer grip on making the right decisions. Awareness is therefore at least as important as knowing the rules. Consult the law here.
If the obligation applies and the contract is above the EU threshold, an EU procedure follows:
If you stay below the threshold, a multi-quote procedure is often the next step:
