Legal Perspective: Is Best Value Procurement achievable within the framework of the ARW 2005?

Abstract

This paper discusses the legal implications of using the elements of the Performance Information Procurement System (PIPS) procedure in the Netherlands. The article proposes the pros and cons of the potential compliance of these elements, in the form adopted in a test case with the municipality of ‘s-Hertogenbosch who attempted to meet the requirements of Aanbestedingsreglement Werken1 (hereafter: ARW) 2005. The author proposes that the national restricted procurement with pre-selection prescribed by the ARW 2005 may raise potential issues of interpretation and may therefore be too strict for the efficient application of the elements of the American methodology. Based on the legal discussion of the test case, the author is proposing to choose a more flexible policy for the public works contracts, which can benefit from the application of the American methodology.