The Model K statement is used by a director under the articles of association of a tenderer to declare that the tender has not come about in violation of Dutch or European competition law. The statement was introduced following the parliamentary inquiry into construction fraud, with a view to preventing misuse in the case of tender procedures and to ensure that the most senior managers cannot evade their responsibility under criminal law in such cases.
Tenders are quite frequently defective, as the Model K statement has not been signed in a legally valid manner. This is because those who can validly sign the tender are often not empowered to sign the Model K statement. Only the director under the articles of association can do so. It follows from established case law that a defective signing of the statement cannot be rectified and that the defective tender is therefore invalid and must be rejected. This is due to the importance of the statement and the principle of equal treatment of all tenderers. However, a ruling has been handed down in a specific case that the rectification of the defect must be permitted if the wrong assignment is inadvertently noted (but the assignment in question is, however, clear) or if a rectification possibility is offered at an earlier stage and subsequently withdrawn (the principle of legitimate expectations then prevails over the equal treatment principle).
In the case referred to, which dates from August 2016, Rijkswaterstaat was the party inviting tenders. The case concerned a signing defect and it probably set Rijkswaterstaat thinking. Because in May of this year, Rijkswaterstaat announced that in future tender guidelines it would be including a rectification possibility for signing defects on the Model K statement. After all, the statement does not influence the contents of the tender, according to Rijkswaterstaat.
We doubt whether the rectification possibility that Rijkswaterstaat wishes to offer will hold in law. Although it may be true that, in a specific case of a signing defect, it was ruled that the legitimate expectation prevailed over the equal treatment principle, we do not believe that this provides grounds for deducing that signing defects on the Model K statement may always be considered eligible for rectification. A signing defect on the Model K statement renders a tender invalid, and the equal treatment principle precludes the award to an invalid tenderer. What’s more, in the case dating from August 2016, there were various other exceptional facts and circumstances, including the fact that the signing defect was not the result of a signature by the wrong person, but a signature placed by the director under the articles of association by hand, whereas a digital signature had been prescribed. We believe that such a defect is related more to an obvious clerical error or a procedural error of minor importance rather than a signature by the wrong person. In our view, rectification in this case is more likely to be at odds with the equal treatment principle. We will have to wait and see whether preliminary relief judges think the same in the near future.
Do you have any questions? Would you like more information on this subject? Please contact one of the attorneys of team Procurement. They will gladly be of your assistance.
