Blog | Procurement: What - How? (issue week 11)

Changing contractors has long been a taboo subject. However, there are possibilities, as indicated in Article 2.163f of the Procurement Act. Under the following circumstances, a contract can be taken over on an interim basis:

• If there is a review clause in the contract, as described in article 2.163c of the Procurement Act;
• In the case of legal succession through, for example, restructuring, acquisition, bankruptcy or merger.

In the second case, the new contractor must meet the original requirements for suitability (and grounds for exclusion). Also, the contract must not change substantially, and the transfer must not take place in order to withdraw the contract from the rules of procurement law.

It is especially the second situation (legal succession) that is interesting. In a share transaction, where the contractor is completely taken over, it was already permitted to change the contractor after the Pressetext judgment. After another judgment (case: C-461/20) it has now become clear that also a contract takeover from the estate of a bankruptcy can be considered a legal succession, under application of article 2.163f of the Procurement Act. This opens up possibilities for the trustee. However, whether a contract takeover is also possible outside of bankruptcy remains unclear.

However, legal succession in the second situation should not lead to other adjustments to the contract. Thus, if there are adverse provisions for the new contractor, he must take them for granted.