We are regularly asked whether a contracting authority may withdraw a tender in a specific case. The tender guidelines often state that the contracting authority reserves the right to cancel the tender in whole or in part, temporarily or permanently. The short answer is: in principle, this is allowed – freedom of contract is the starting point – but the contracting authority must comply with the general principles of good governance. A decision to withdraw must be well-reasoned. And that sometimes goes wrong, or even twice in a row, as can be read in a recent judgment of the (provisional relief judge of the) Midden-Nederland District Court (Midden-Nederland District Court February 14, 2025, ECLI:NL:RBMNE:2025:390).

In accordance with the Croce Amica judgment, the court assesses in full whether the (now second) revocation decision of the municipalities in question is lawful. It examines the reasons given one by one and finds that they all lack factual basis, are not transparent, and that this strongly suggests that the municipalities only want to withdraw the tendering procedure because they do not want to award the contract to the claimant for improper reasons. According to the court, this is therefore an unlawful withdrawal decision.

The court then goes one step further and grants the order for provisional award to the claimant.

“Although it is in principle permissible for the municipalities to take multiple withdrawal decisions, this is not unlimited. The opportunity offered to take a new, well-reasoned withdrawal decision should, in principle, have been sufficient; in the words of […], it ends there. In this case, the municipalities already had the opportunity to take a new withdrawal decision after the first withdrawal decision. The Municipalities also seized that opportunity and took ample time to do so (approximately two months); they held internal consultations and sought legal advice from their lawyers. The municipalities did not therefore rush into taking the second withdrawal decision (which was the subject of these preliminary relief proceedings). Nevertheless, they did not succeed in taking a lawful withdrawal decision. Under these circumstances, it must be assumed that they will not succeed next time either.

In view of the above, the renewed withdrawal of the tendering procedure is contrary to the general principles of good governance.

The foregoing means that if the Municipalities still wish to put the framework agreement for component maintenance 2024 on the market, they must provisionally award the contract to [..]. The injunction sought by [..] to provisionally award the contract to [..] is therefore granted.”

If no objection is lodged against this provisional award, the municipalities have no choice but to award the contract definitively to the claimant (the winner) (unless the municipalities no longer wish to put the contract in question on the market).

This judgment once again underlines the importance of a sound withdrawal decision, stating all relevant reasons for the decision to withdraw. These may include changed economic or factual circumstances or the needs of the contracting authority.

For more information on this subject and the scope available to a contracting authority to withdraw a tender, please contact our procurement specialists Patou Courtens (p.courtens@paulussen.nl) and Bert Lejeune (b.lejeune@paulussen.nl).

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