When does the Defense and Security Procurement Act apply?
The DSPA may apply to procurement contracts involving vital infrastructure, such as grid operators' energy infrastructure. Under the new laws and regulations, the minister can designate data, resources, materials, processes or working methods as essential in the context of protecting vital processes for national security. The minister, in consultation with grid operators, establishes an inventory list of critical processes at (among others) grid operators and identifies supporting assets. It then determines whether the risk of disruption to those processes and assets is so great that it could affect national security. If so, the grid operator is required to apply DSPA instead of the Procurement Act when procuring the supporting assets.
Significance in practice
With the DSPA becoming applicable for certain contracts, the procurement practices of grid operators will change. This is because the DSPA differs from the Procurement Act in several respects. Some examples are:
- In the context of national security, the DSPA contains special rules related to data security and subcontracting, among others. The DSPA specifies data security requirements and subcontractors may be subject to the same requirements as the company itself (Article 2.39 ADV) (in Dutch).
- The DSPA provides additional opportunities to exclude economic operators. For example, it is permitted to exclude economic operators from non-EU member states (Article 1.7 ADV). In addition, it is possible to exclude candidates or tenderers for whom it has not been established that "he does not have the reliability necessary to eliminate risks to national security" (Article 2.77 ADV) (in Dutch).
- An important difference between the two acts is that the open procedure is not available under the DSPA.
- In addition, the deadlines in the DSPA differ from those in the Aw. For example, the standstill period after the award decision is at least 15 days (Article 2.118(3) ADV) (in Dutch), where it is 20 days under the Procurement Act. The maximum term of a framework agreement under the ADV is seven years (Article 2.129(3) ADV) (in Dutch). In practice, this results in fewer contractual options for grid operators, which under the Procurement Act could usually provide for a maximum term of eight years (Article 3.80 Aw) (in Dutch).
The Guide on Proportionality and the clustering and lotting requirements do not apply to procurements under the DSPA (Article 1.5 Aw) (in Dutch).
Do you have questions about the impact of the Dutch Energy Act on tenders? If so, please contact us.
