The tender for the harmonization of target group transport in The Hague did not go well. One of the tender requirements led to too much confusion. That is why an earlier award must be withdrawn and the municipality of The Hague must redo the procedure. This was recently determined by the preliminary relief judge in The Hague after summary proceedings brought by Connexxion. The municipality announced in February that it would award the contract to RMC; Connexxion came in third.

With the assignment, the municipality of The Hague wanted to accommodate five different transport flows in one contract. Award criterion was the most economically advantageous tender. There were five parties that submitted an application on time, including Connexxion, Noot and RMC. The latter two companies also joined the case as intervening parties.

Unrealistic prices The dispute revolved around the amount of the costs in the offers of the carriers. At the end of last year, the municipality informed Connexxion that the prices quoted by the carrier were abnormally low and even below cost. One or more cost components would have been discounted in other transport flows. Because of those unrealistic prices, the municipality decided at the time that Connexxion’s registration was invalid. The municipality has offered the carrier to adjust its prices for all five transport flows to a level that is in line with the market. RMC and another unnamed carrier received the same offer. The Hague also wanted Connexxion to clarify how the kilometer price per individual transport flow was structured.

Connexxion informed the municipality that its prices are realistic and in line with the market and that they are therefore not to fit. RMC has not adjusted its prices either, because they are realistic, the transport company reported to the municipality of The Hague. At the beginning of February of this year, the municipality took the plunge and announced its intention to award the contract to RMC. Connexxion came out as third, Noot as fourth party.

Requirement to be explained in several ways In summary proceedings both Connexxion and Noot demanded that the municipality withdraw its award decision and put it out to tender again. Both carriers find it unclear that the requirement that tenderers must offer a realistic price per transport flow. After all, the requirement can be explained in several ways, they say. The municipality objected that the carriers could have lodged an objection earlier, but the judge did not agree.

The preliminary relief judge also finds the municipality’s requirement to be interpreted in different ways and therefore the different offers are no longer comparable. The confusion was mainly in the question of whether there was scope in the tender to use the synergy benefits offered by the implementation of a combination of transport flows and thereby allocate costs to a larger transport flow.

Also importance of the municipality There is only one solution, the judge concluded: a new tender. The municipality of The Hague said it has a great interest in a quick final award to RMC, but that is no reason for the court to set the interests of Connexxion and Noot aside. Moreover, according to the judge, The Hague also has an interest in a retender. After all, only if the ambiguities in the tender are clarified, can the municipality be sure that the winning tender is really the most economically advantageous.

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