Non-conformity in government procurement: your questions answered

Questioner

Hello. For my paper I have the following question: If I make a purchase on behalf of a public law legal entity (e.g. municipality) and the product is not in accordance with my wishes. Does this also involve the principle of non-conformity within the meaning of article 7:17 BW? This is not a consumer purchase (article 7:5 paragraph 1 BW). What could a government rely on in the event of non-conformity?

Lawyer

Dear questioner, tip: go back to book 6, general law of obligations and contracts.

Lawyer

Article 7:17 BW applies to all purchase agreements, including agreements involving the government. Specific provisions for consumers can be found, for example, in Articles 7:22 BW and 7:24 BW. A government, like any other entity, can appeal to the conformity provisions of article 7:15 et seq. BW. Incidentally, you are not dealing with public law here, because a purchase by a municipality is not a public law but a private law legal act.

Questioner

I understand that it is a private law act, but the government always remains a public law legal entity (art. 2:1 paragraph 1 BW)? Okay, I understand that you can also appeal to art. 7:17 BW on behalf of a government institution. Thank you very much.

Lawyer

The government can also act as a private law entity. The government is in a position where it can be both a private law entity and a public law entity. But that does depend on the situation. Kind regards, Naomi