The Court of Appeal Arnhem-Leeuwarden:
The scope of the concession contract must be based on the realistically achievable revenue.
The Court of Appeal Arnhem-Leeuwarden ruled that the scope of a concession contract must be determined based on the realistically achievable revenue, rather than the maximum possible revenue.
This decision has significant implications for how contracting authorities assess the value of concession contracts and conduct procurement procedures.
The municipality of Hilversum, represented by Suzanne Brackmann, argued that the revenue estimate should be based on realistic expectations. The Court of Appeal upheld this position and emphasized that the estimate must be a valuation of the revenue based on realistic expectations, taking into account the market conditions at the time of the tender. The contracting authority must use an objective method, also considering potential options and extensions that could generate additional revenue.
“Together with Suzanne, we thoroughly prepared the case. She provided the municipality of Hilversum with highly expert advice and guidance, resulting in this successful outcome.”
Regulations according to the Public Procurement Act
The Public Procurement Act contains specific regulations for determining the scope of a contract. However, additional rules apply to concession contracts due to the unique nature of such contracts. The law requires that the scope of the contract be based on the revenue that the contractor can realistically achieve during the future execution of the contract.
