Blog | Procurement: What - How? (issue week 15)

The final part of the series on changes:

What if the contractor fails to meet the terms, but the contracting authority does not hold the contractor accountable by not sanctioning the failure?

This shifts the economic balance in favor of the contractor. The contractor benefits, as the execution conditions are relaxed. This constitutes a substantial change according to Article 2.163g of the Public Procurement Act.

The failure to enforce the agreement is, therefore, an unlawful change and should not be done without invoking one of the exceptions. Unfortunately, Dutch case law (still) does not see it this way. Judges believe that the contracting authority has discretion in deciding whether to enforce the contractual requirements.

In my opinion, this stance is incorrect. If the contracting authority does not enforce the requirements strictly, they are, in effect, relaxed. This is in violation of the principle of equality, which also applies during the execution phase. The contracting authority must therefore sanction deficiencies as specified in the agreement, especially if the agreement obliges them to do so. Not least because this is also in the best interest of the contracting authority.