The Municipality of Amsterdam awarded the contract for the restoration of the Westerkerk Tower in Amsterdam to the bidder at the best price-quality ratio. The plaintiff ranked third in the multiple special bidding procedures. The plaintiff argues that the evaluation is flawed in various parts and requires a re-evaluation by a new evaluation committee. The court rules that the evaluation with respect to Quality Part A cannot stand the test of criticism at some points. The next question is whether the re-evaluation can be carried out by the existing evaluation committee.
Re-evaluation due to the new composition of the evaluation committee
In its ruling, the court said:Just a circumstance that the evaluation committee has made the first evaluation, […] not always [maakt] He can’t make a reassessment.”† However, the Court concluded that two members of the Committee should be replaced. Since it is difficult to see how the evaluation committee in the same composition can arrive at a new objective evaluation regarding the quality component to be re-evaluated, the evaluation committee cannot remain unchanged. By replacing two members of the committee, the independence and objectivity of the evaluation committee is guaranteed on the one hand, and the committee’s expertise in this project on the other hand, according to the court. For the equality principle of the new composition, the evaluation committee must re-evaluate all registrations for quality component A.
Diverse line in case law
If something is judged to be wrong in the evaluation of the bid – except in cases where it appears that the evaluation committee does not have the necessary expertise – the consequences for the evaluation committee concerned will vary from case to case. In many cases, the entire evaluation committee had to be replaced. For example, the District Court of The Hague ruled that the creation of a new appraisal committee was necessary to exclude the risk of favoritism. The Amsterdam District Court also reached the same conclusion earlier and ruled that the reassessment must be carried out by a new, unbiased assessment team to be brought together.
In another case, the Amsterdam court ruled that Just a circumstance that the evaluation committee has made the initial evaluation [niet] Make †[…}[…} He can’t make a reassessment.”† There were no indications for the Court by which to conclude that the Evaluation Committee, which had already conducted the re-evaluation prior to the initial injunction proceedings, was biased. So the re-evaluation can be carried out by the same evaluation committee. The Gelderland District Court has also previously ruled that the re-evaluation can be conducted by the evaluation committee itself.
In the judgment discussed, the court did not reach the conclusion that the evaluation committee was not impartial or independent. Therefore, it is noteworthy that the current evaluation committee may not conduct the re-evaluation in an unchanged composition.
At the same time, when it ordered the replacement of two residents, the court rightly took into account the far-reaching consequences of the order to form a completely new evaluation committee. After all, the necessary experience and expertise are lost. But the question is whether the replacement of two members of the evaluation committee in this case is an effective solution to ensure the objectivity and independence of the evaluation committee, especially now that the evaluation committee consists of six people. However, the revision of the review team may have an effect if the changed team has to reach the conclusion of the new review unanimously, because the new appearance of the new reviewers can change the view of the members who performed the first review as well. The Amsterdam court could also have chosen to order the contracting authority to replace the majority of the existing residents, as it had previously done in a similar case. If changes in the evaluation team were assumed to be necessary, this selection would do more to do justice to the required objectivity and independence.
Do you have questions about your bid evaluation and evaluation objection opportunities or do you need help dealing with bidder objections? Please contact Iris Nedawi Doctor or Mathijs Junkers.