Dutch Regulator ACM Issues Guidance on Joint Tendering

The Netherlands Authority for Consumers and Markets (ACM) has issued guidance on joint tendering, giving competitors that bid together their clearest signal yet on when cooperation crosses into prohibited coordination. The guidance comes from the Dutch competition authority itself. That matters.

Joint tendering sits in an uncomfortable corner of competition law. Two firms that are rivals on Monday may be consortium partners on Tuesday. The ACM guidance addresses precisely that tension, telling parties what the regulator will accept, what it will scrutinise, and what it will treat as a cartel.

What does the guidance actually do?

It maps the boundaries. Joint tendering can be lawful when the parties genuinely complement one another or when neither could perform the contract alone. It becomes suspect when the cooperation extends beyond the bid at hand, or when the partners exchange competitively sensitive information they would never share at arm's length. The distinction is old. The clarity is new.

For Dutch market participants, the practical points are these:

• Cooperation between actual competitors attracts the closest scrutiny.
• The scope of the consortium should match the scope of the tender; anything broader invites questions.
• Information exchange outside the joint bid is the classic tripwire.
• Parties should document why the combination is necessary and proportionate.

Who should care?

Construction consortiums, healthcare providers responding to Dutch procurement, and any grouping of suppliers that meets a municipal or government tender. Public procurement in the Netherlands runs on competitive bids; where bids are joint, the ACM has now marked the lane edges. In-house counsel should treat the guidance as a checklist rather than a lecture.

Compliance teams gain a document they can cite internally. Previously, advising on a joint bid meant assembling positions from case law, European guidance, and enforcement practice. The ACM has consolidated the picture for its own jurisdiction. That reduces advisory uncertainty. It does not eliminate risk.

What happens if parties get it wrong?

The consequences remain those of any infringement of the Dutch Competition Act and the EU cartel prohibition: fines, damages actions, and voided contracts. The guidance does not soften enforcement. It tells parties where enforcement will land. A map of the minefield is not a promise of safe passage.

The lesson is unglamorous. Rivals may bid together when the tender requires it, on terms the tender defines, with walls around anything else.