Failure to fulfill EMVI promises

In recent months there has been a lot of media attention on the subject of "failure to fulfill EMVI promises." The promising of golden mountains, the soundness of certain EMVI criteria, the enforcement of EMVI promises and the issue of reasonableness if fines are imposed for non-compliance with EMVI promises. They have turned out to be hot topics. In this contribution a brief legal consideration.

Evolution
There has been a clear evolution in recent years. The original image of tenderers freely promising golden mountains and where the tender team was not sufficiently connected to the execution team has changed. Clear cross-pollination between the tender team and the implementation team, a coordination meeting with the client, an EMVI checklist, EMVI as a recurring agenda item at every construction meeting and even an EMVI verification app are just some of the elements from today's practice. This picture is closely related to clients who are much stricter with EMVI promises made. Due to the increase of the quality aspect in the award criterion, it is becoming increasingly clear that enforcement of EMVI promises is necessary. For example, in view of the principles of transparency and equality. On the basis of EMVI inspection lists, for example, checks are being tightened up. Politicians are also stirring. Led by State Secretary Keijzer, there is a louder call for EMVI promises to be kept and enforced. 

Despite these developments, there remain numerous examples where EMVI promises go wrong. A striking observation is that the introduction of EMVI promises with respect to time/planning, often also brings with it a risk factor.

Justice
Challenging in summary proceedings EMVI promises made by a tenderer which promises are considered manipulative or unrealistic by a competitor remains a tricky course. See a judgment of the District Court of The Hague of January 30, 2013 ECLI:NL:RBDHA:2013:11066. In particular, the problem lies in demonstrating that the EMVI promises are not realistic. And further investigation in summary proceedings is usually not possible. In a judgment of the District Court of North Holland of July 27, 2016, ECLI:NL:RBNNE:2016:3580, it is notable that the EMVI call for tenders and the EMVI promises were mainly interpreted linguistically by the civil court. In a decision of the Court of Arbitration for the Construction Industry dated May 30, 2013 No. 32,994, a work under the UAV-GC involved cables and pipes that deviated from the inventory received from the client. And with that, the contractor had to change the execution method it had promised in its EMVI promises. Arbitrators ruled that pursuant to Paragraph 3 (2) of the UAV-GC, the principal is responsible for the accuracy of the information provided. And if that information turns out to be incorrect, as a result of which the contractor can no longer fulfill his promised execution method, the principal is not entitled to impose the related EMVI penalty. An important tip for tenderers is therefore to pay attention not only to financial and time aspects in deviation forms, but also to EMVI aspects. 

Joost Haest
Severijn Hulshof lawyers