Pursuant to Section 17(1) of the RPVS Act: “A person who is not a public sector partner may also be entered in the register in accordance with the procedure and conditions laid down in this Act if they so request.” For which practical cases is the institution of “voluntary registration” within the meaning of the above intended? How can it be determined in normal practice that a person entered in the RPVS has acted in accordance with Section 17(1) of the RPVS Act (and is therefore not a public sector partner)? What is the procedure if a person has registered in accordance with Section 17(1) of the RPVS Act and was therefore not a public sector partner at the time of registration but subsequently became one? Is it necessary (with regard to Section 17(2) of the RPVS Act) to inform the registration court and amend the registration? If so, how?
In practice, there are cases where an entrepreneur expects to participate in several public procurements where the value of the contract exceeds the limits specified in the ZRPVS, and this entity expects that it could become a successful tenderer in at least one of these procurements. Since the entity must be registered in the register at the latest before signing the contract, it wants to fulfill its obligation well in advance. However, the ZRPVS does not require competitors to register; this is required at the latest before the contract is concluded.
The ZRPVS does not require the entity to notify the registration authority that it has “changed” from a voluntarily registered entity to a public sector partner. The provisions of the ZRPVS apply equally to public sector partners and voluntarily registered entities, with the exception of penalties that cannot be imposed on voluntarily registered entities. If the court decides on a breach of obligations under the ZRPVS, it must also consider whether the entity was registered voluntarily and therefore no penalty for misconduct will be imposed, or whether the entity meets the conditions set out in the ZRPVS and is therefore a public sector partner.
