Preparedness at any price? ACM warns against defence procurement shortcuts

How much flexibility should a government have in preparing its armed forces, and at what cost for legal certainty? That question is at the heart of the Dutch Defence Preparedness Act (Wet op de Defensiegereedheid).

On 18 July 2025, the Dutch Authority for Consumers and Markets (ACM) published its feasibility and enforceability assessment (UHT) of the draft act (link). The proposal would allow the Minister of Defence, through governmental decrees (AMvB), to deviate from existing legislation, including procurement law, whenever “preparedness activities” might otherwise be hindered. 

The ACM finds the draft generally enforceable, but it warns that the scope of derogations goes too far, particularly in procurement. 

Procurement 

Procurement rules are meant to guarantee the best value for money, a level playing field for bidders and innovation. Suspending them too broadly risks undermining these objectives.

The ACM identifies four main concerns:

• Broad definitions – The terms “preparedness activities” and “readiness” are so widely defined that procurement rules could be set aside in many situations, making scope and consequences difficult to estimate.
• Clarity on justification – Crisis situations may warrant bypassing procurement procedures, but in less urgent cases, regular processes (with shorter deadlines or limited adaptations) should remain possible.
• Duration of exemptions – It is unclear how long contracts awarded outside procurement rules may remain in force, or how changed circumstances affect them. The ACM calls for upfront clarity on contract duration.
• Interaction with EU law – Besides procurement rules, EU state aid rules and the Dutch Wet Markt en Overheid may also apply. The ACM asks the Ministry of Defence to explain how the proposal aligns with these regimes.

Implications for the defence sector

Whether this proposal will make it through the legislative process in its current form is not yet certain. The ACM’s advice is not binding, so the Ministry of Defence could decide either to amend the draft or to push ahead largely unchanged. What is clear is that the proposal signals an EU- and worldwide political drive towards greater flexibility in defence procurement. This will provide both opportunities and challenges for the defence sector – with potentially less formal public procurement procedures and more directly awarded contracts.

Our take

Flexibility in defence procurement is understandable in today's security environment. But the ACM rightly points out that any derogations to the general rules of procurement law should remain proportionate, time-limited, and transparent. 

The ACM's concerns point to a potential design flaw in the Act: it tries to be both a crisis response tool and a general flexibility mechanism. This dual purpose creates uncertainty about when and how it can be applied. 

Another valid concern of the ACM is what happens when contracts awarded under this new regime will end. Without clear transition rules, companies could find themselves with contracts of uncertain duration, given the fact that it is not clear upfront on how long these exemptions will remain in force. Clarity and better definitions are advisable according to the ACM.

If you need more information or further guidance in this area, please contact Janneke Kohlen, Joost van Roosmalen and Juliette Tiel Groenestege.

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