What should be done if the instructions stipulate that the action plan may not exceed ten pages and an action plan is submitted containing ten pages plus an annex in A3 format?
Should the annex be left out of consideration or should the whole tender be declared invalid?
The tender should be declared invalid, according to the judge in preliminary relief proceedings in The Hague. According to the judge, omitting one of the pages is not simply specifying or correcting what is obviously a material error. The information on that page can affect the assessment and it is also arbitrary which page should be left out.
The decision by the contracting authority, the Rijkswaterstaat (Directorate-General for Public Works and Water Management), to leave the annex out of consideration and award the contract to this (‘over-the-limit’) tenderer was therefore overturned. The judge ordered Rijkswaterstaat to revoke the award decision, declare the tender from the (‘over-the-limit’) tenderer invalid and award the contract for major maintenance of waterway structures to the claimant (who in that case had submitted the most economically advantageous tender).