A Summary of a Procurement Procedure for Dutch Defense Equipment

There is an increasing demand for defence equipment. To this end, the Ministry of Defence has initiated (tendering) procedures. There are various criteria that interested suppliers or manufacturers must meet. For a better understanidng we give an example of the criteria for a procurement procedure that recently took place for unmanned aerial systems (UAS).

Procedure for the procurement of defence equipment

The Ministry of Defence, through the Equipment and IT Command (called COMMIT), takes the lead of this process for the procurement of defence equipment, such as the one recently launched for unmanned aerial systems (UAS). COMMIT informs parties about the government’s objectives so that interested market parties can prepare for the procurement procedure. An announcement for a defence tender may provide further details on how the process will proceed and how a supplier can register their interest in a defence tender.

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In view of the essential security interests of the Dutch defence industry, the Ministry may choose to exempt the contract from the tendering rules on the basis of Article 346(1)(b) of the Treaty on the Functioning of the European Union (TFEU). The procedure is generally as follows. A overview of the main procurement procedures for Defense equipment you will find here.

Phasing of the Ministry of Defence procurement procedure

The procurement procedure is divided into three phases:

1) The announcement phase (the phase covered by this document)
2) The tender phase
3) The award phase

The announcement phase begins when the Announcement (via the Mercell platform) appears on TenderNed. In this phase, a producer or supplier can register as an ‘Interested Party’ via Mercell. All Interested Parties are invited to the tender phase via Mercell. All communication in this process takes place via Mercell. Interested Parties who are invited to the tender phase receive the company selection and product selection guidelines as well as all relevant (technical) documentation. These documents are made available in a non-publicly accessible request in Mercell.

Quotations submitted in the procurement procedure

The quotations submitted will be assessed by COMMIT in the award phase on the basis of the best price/quality ratio. This will result in a ranking. Based on this ranking, Interested Parties will be invited to participate in a test flight. The test flight is not evaluated but is a knockout test. The contract will ultimately be awarded to the interested party who has submitted the highest-ranked tender and who has successfully completed the test flight.

The security of supply of equipment is essential for the armed forces. If, during the award phase, it appears that one or more interested parties are young and/or small enterprises,

an investigation into the viability of the company will be carried out. If the outcome of the investigation is negative, the tender will be set aside.

Provisional planning of the procedure by the Ministry of Defence

The Ministry of Defence reserves the right to amend the provisional planning without giving reasons. No rights can be derived from the provisional planning.

Exclusion criteria for a defence contract

As proper evidence of integrity, an interested party must submit the following documents together with the tender during the tendering phase:

– For the exclusion criterion of participation in a criminal organisation, bribery, fraud, terrorist offences or money laundering: a “conduct statement for tendering” issued by Justis (please note: this may not be older than two years from the date of submission of your tender).

– For the exclusion criterion of bankruptcy or liquidation: an extract from the commercial register (this may not be older than 6 months from the date of submission of your tender);

– For the exclusion criterion of serious (professional) misconduct: a “conduct statement for tendering” issued by Justis (please note: the conduct statement may not be older than two years from the date of submission of your tender);

– For the exclusion criterion of tax obligations: a statement issued by the Tax and Customs Administration (please note: this statement may not be older than 6 months from the date of submission of your tender).

– For the other exclusion criteria, namely false statements when providing information or a determination that the interested party does not have the reliability necessary to rule out risks to national security, the burden of proof is not subject to any formal requirements. This could include, for example, a legally signed statement by a notary or a signed statement by the authorised director(s)/major shareholder (please note: this statement may not be older than two months from the date of submission of your tender).

During the procurement procedure, it is not permitted to contact any Defence employees other than the designated contact person regarding this procurement, unless expressly

stated otherwise in the procurement documents. Failure to comply may result in exclusion.

Professional competence for suppliers of defence equipment

In addition to the exclusion criteria, tenderers must demonstrate their professional competence. As legal evidence, you will be asked to submit the following documents during the tender phase: an extract from the trade register of the Chamber of Commerce (please note: this extract may not be older than 6 months from the date of submission of your tender).

Operational requirements during the execution of defence contracts

In addition to the exclusion criteria and professional qualifications, specific contracts also have operational requirements that must be met during the execution of the contract. During the tender phase, documents such as the following may be requested as supporting evidence:

(1) A list of development activities taking place in the Netherlands.

(2) a process overview including relevant detailed photographs of the production location

(3) For the operational requirement of data storage in the Netherlands: confirmation from your IT provider or IT manager that you use servers located in the Netherlands for the storage of product-related development and production data and software packages. If you do not have your own (series) production location, you are required to involve an existing production company based and operating in the Netherlands as a subcontractor in the process.

Blenheim specializes in commercial contracts. We’re happy to share our expertise with you.