New Tendering Policy for Water Boards makes room for innovation

On 30 September 2016 the Commission of the Dutch Water Boards laid down a new procurement policy. The aim of the new policy is to make sure that the procurement and tendering process of the Water Boards is done in a fair and responsible manner. With this new policy, the Commission hopes to optimize the effectiveness of the procurement procedure and improve the overall quality of procurement contracts.

Innovation oriented procurement and Private Initiative

A key feature of the new policy is a specific process known as a “Private Initiative” in order to encourage innovation focused procurement. A Private Initiative can be submitted by participants and will focus on solving problems for the Water Boards. If the contract for the Private Initiative is estimated above the European threshold amount then the Water Boards are obliged to announce the contract on TenderNed. However, Article 2.32 of the Procurement Act makes it possible, in some cases, to conduct a negotiated procedure with a particular contractor without prior publication of the procurement. This can be the case, for example, if the tender aims to manufacture or acquire a unique work of art or a unique artistic achievement.

In many ways, the Private Initiative is similar to an unsolicited proposal. The stumbling block here is the fact that entrepreneurs rarely take initiative or come up with a proposal, due to uncertainty as to whether the contracting party likes the idea. In the event that the contracting party likes the idea, it is still uncertain whether the proposal will be realized. Further, even if the idea is opened for a procurement procedure, the entrepreneur may gain nothing. It does not seem that the Water Boards have managed to come up with a solution for this dilemma - organizing innovation partnerships involving new developments is challenging.

Egg of Columbus?

Although the Private Initiative policy makes innovation-oriented tenders possible, the fact remains that their success will mainly be determined by the way in which the tender is organized. The second decisive precondition is the contract that has to be tendered. Innovation only has a chance when procurers dare to distance themselves from the traditional forms of contract. Without abandoning the achievements of the procurement practice, procurers need to step out and tread new paths. This would require tender documents that are authentic and original, and contracts based on custom where, apart from renovation, a foundation can be placed for cooperation based on trust and shared interest. In short, the Private Initiative is a beautiful new policy that still needs to take shape in practice so procurers can get the most out of the opportunity of innovation-based procurement.

If you would like to learn more about this new policy, please contact Petra Heemskerk or Navid Kiani deh Kiani.