The market must learn to lose

Netherlands needs to build, and fast. Whether it's housing, power grid expansion or rail projects: the urgency is sky-high. From the market, the same lament is heard every day: the government is too slow, procedures are too complex and rules are stifling. But according to Jan Willem van de Groep, the brakes on the Netherlands are not only on the government. The market also organizes its own slowdown.

The reason for this column is a sympathetic-sounding bill to strengthen the legal protection of entrepreneurs in tenders. More transparency, mandatory complaints offices and extra time for objections. Who can be against that?

Many experts, it turned out during a round-table discussion in the Lower House. Scientists, legal experts and contracting authorities voiced strong criticism. The Council of State warned earlier: it is not clear whether this proposal really improves legal protection. What is certain is that procedures will become longer, more expensive and more unpredictable.

The culture of the certain right

This puts the finger on a sore and unnamed spot: we have created a procurement culture in which losing is still hard to accept. Of course, legal protection is a necessary counterforce. Governments make mistakes and assessments can be careless. But there is a critical line between protection against arbitrariness and the structural legalization of every lost contract. Moreover, the legal battle is often a sham fight. The KWINK research on legal protection shows that a won summary judgment rarely leads to automatic award to the plaintiff. Usually, only a reassessment or a restart of the proceedings follows. After all, the judge does not sit in the government's chair.

The result is that the legal gain rarely translates into an order to the plaintiff, but does almost always result in delay.

And that delay is very costly. A missed execution window on rail or energy infrastructure immediately leads to years of delay and millions in additional costs. Not for nothing do parties such as VNG, ProRail, TenneT and Netbeheer Nederland jointly warn against a debilitating "complaints carousel.

The procurement paradox

The uncomfortable thing is the double standard of the market. The same sector that burns blue murder screaming about managerial inertia exploits every legal hook as soon as it itself is out of the loop.

• It demands speed, but forces clients to be defensive.
• It asks for trust, but holds the process hostage with claims.
• It calls for room for innovation, but makes public procurers so afraid of mistakes that they reflexively fall back on safe procedures and the lowest price.

This creates a paralyzing paradox. We want better, more sustainable projects, but build legal fences around selection. We want quality, but reward the party with the best lawyers. We want acceleration, but tolerate a culture where litigation is more lucrative than excellence.

Learning to lose

Of course an entrepreneur may stand up against injustice. But the market must also recognize that rejection is not synonymous with wrongful decision-making. Sometimes a competitor is simply better. Sometimes a plan is weaker. Sometimes the assessment is defensible, even if it is painful.

True professionalism is evident not only in winning, but also in being man enough to take your losses. The acceleration of the Netherlands does not begin with yet another counter, an extra formal step or a new change in the law. The acceleration starts with a change in culture and a simple agreement between market and government: litigation if necessary, but never again as a standard reflex.

A market that juridifies every lost tender should not be surprised when the government cringes. Anyone who wants the Netherlands to build faster must also be prepared to cash in.

About Sightlines

Directions is my way of taking the conversation about renewal in construction a step further. Not by shouting louder, but by looking more sharply. I write about what is going on under the surface: the assumptions, the systems and the choices that determine what we build and why. My ambition is to give direction to a sector that is always in transition, but unintentionally still thinks in old patterns too often. What systems are still holding back a construction that wants to be faster, more affordable and more future-proof?

Jan Willem van de Groep