Germans take the Netherlands to court over French submarines

German shipbuilder ThyssenKrupp Marine Systems wants the court to look at how the Dutch State came to its decision to award the billion-dollar order for four new submarines to the French Naval Group. the Germans feel misled because the State changed its mind halfway through the tender process and wanted a different product. “If that is true, ThyssenKrupp has quite a story,” says procurement lawyer Daan Versteeg.

According to Versteeg, it is more common for a potential contractor to come up with a new idea that the client agrees with, but this is not allowed in official tenders where the parameters and criteria are determined in advance. ‘In this case you have very neatly announced in advance what everyone must comply with and if the Germans have done that properly and the French are doing something different; that is actually not in line with the conditions.’

Also read | Delays and cost increases are lurking when ordering submarines

‘When you choose to tender, you must be reliable as a government and adhere to those criteria.’ Versteeg has read the letter to the State Secretary and believes that ThyssenKrupp ‘has got something’.

Unusual extension

For example, the government extended ThyssenKrupp’s objection period from the usual 15 days by half a month because the yard wanted to look at it a little longer. Versteeg finds that strange; Anyone who participates in a government tender and asks to look at something longer is usually told no. From the extension of the term, Versteeg concludes that the Dutch State suspects that the Germans have a point.

Also read | Damen wins billions in order for German naval vessels

According to Versteeg, in these types of arbitration cases, the government wins in 75 percent of the cases, and the plaintiff in 25 percent. If the judge rules in favor of ThyssenKrupp, this does not mean that the contract will go to the Germans, but that the tender will have to be repeated. Versteeg suspects that the parties will probably be in court in mid-May and that a decision will be made after two weeks.

Also read | German company takes legal action after losing construction of Dutch submarines

Not only the judge is looking at the tender, the House of Representatives also wants to look critically at the tender, because a majority believes that the contract should go to the Saab/Damen combination and not to France. ‘I think that the House of Representatives can only give an ultimate go or no-go, and if it is no-go, then it is just a matter of starting all over again.’