What is the Proportionality Principle?

The principle of proportionality plays a central role in procurement law and helps ensure that requirements and conditions that contracting authorities impose on bidders are reasonable and balanced. This principle is crucial to ensure fair opportunities, especially for small and medium-sized enterprises, and to prevent disproportionate requirements from discouraging potential bidders. This article provides an in-depth overview of the proportionality principle, its practical application within procurement, and strategies to meet these criteria as a business.

What is the Proportionality Principle?

The principle of proportionality means that the requirements, conditions and criteria that a contracting authority imposes on bidders must be proportionate to the nature and scope of the contract. The principle seeks a balanced relationship between the objective that the contracting authority wants to achieve and the means used to achieve it, without unnecessary obstacles for companies.

Purpose of the Proportionality Principle.

The principle of proportionality is intended to prevent unreasonable and unbalanced requirements in procurement. This helps to promote competition, ensure diversity in tenders and ensure that requirements are only in line with the nature of the contract.

Key principles within the proportionality principle

There are some core principles that help contracting authorities comply with the principle of proportionality. These principles ensure a fair opportunity for all parties involved and help promote competition.

1. Proportionality in requirements and conditions.

Conditions should always be proportionate to the nature and scope of the contract. For a small project, the contracting authority should not impose overly demanding requirements. This ensures that the threshold for participation in the tender remains low, especially for small companies.

2. Appropriateness and effectiveness.

All requirements imposed by the contracting authority must be necessary to perform the contract. For example, a service provider may only impose requirements related to the technical or professional skills that are actually necessary to perform the contract.

3. Transparency and clarity

The principle of proportionality also requires transparency in procurement communications and requirements. Contracting authorities must clearly define the reason and need for each requirement. This gives bidders an understanding of what is expected and why certain requirements apply.

The Proportionality Principle in Practice.

In practice, the proportionality principle provides guidance on how contracting authorities should set requirements and conditions in tenders. Here are some concrete applications of the proportionality principle.

Among the selection criteria

Contracting authorities must ensure that selection criteria comply with the proportionality principle. This means that selection criteria should not go beyond what is necessary and should not unnecessarily raise barriers.

Conditions around financial ability and technical ability

An example of proportionality is limiting requirements around financial standing and technical ability to what is strictly necessary for the performance of the contract. Small companies capable of performing the contract should not be excluded because of unnecessarily high requirements.

Examples of application in the proportionality principle

The principle of proportionality can apply at different stages of the procurement process. Here are some examples.

Requirements for technical and financial capabilities

In some cases, excessive requirements for technical and financial capabilities may lead to the exclusion of suitable candidates. Contracting authorities should ensure that requirements do not create an unnecessary barrier to participation in procurement.

Contract terms

Contract terms should be proportionate and commensurate with the nature of the contract. For example, for a one-time supply, the duration of the contract must be reasonable and not impose a disproportionate obligation.

Strategies for companies to comply with the proportionality principle

Companies can use some strategies to ensure that their bids comply with the proportionality principle and are attractive to contracting authorities.

1. Ensure transparent enrollment

By clearly presenting the goals and methods of the tender, companies can show that they meet the requirements. Transparency helps the contracting authority better assess the company's capabilities and abilities.

2. Prepare support documents.

Companies should be prepared with all necessary documentation that demonstrates their suitability for the job, without providing redundant information.

Conclusion

The proportionality principle is an essential aspect of Dutch procurement law that helps create a fair and accessible market. By setting proportionate requirements, this principle ensures a wide range of participants in the procurement process and avoids unnecessary barriers for bidders. Companies that are familiar with and adhere to the principles of proportionality increase their chances of success and comply with legal guidelines.