The Didam judgment:a curse or blessing?

On Nov. 26, 2021, the Supreme Court issued an important ruling, known in practice as the "Didam ruling. In short, if a municipality intends to sell a property and there are more candidates, they must be given the opportunity to compete. A public selection procedure (tender) should then be organized that contains objective, testable and reasonable criteria on the basis of which a party is selected. When as a developer the business model is largely based on obtaining development positions from municipalities on a one-to-one basis (as we have been doing for over 30 years), this means a radical change of course. Whereas previously we would move on to the next project based on great projects with a pleasant process, now you have to compete for every project. On the other hand, you can qualify for many more projects that were otherwise awarded on a one-for-one basis. There is nothing wrong with the principles of the Didam ruling, of course, but does it also result in better projects and, not unimportantly in these times of great housing shortage, development speed?

Now, almost three years after the ruling, it is interesting to look back at the great diversity of selection procedures we have seen. On the basis of dozens of tenders with ditto disappointments, euphoric moments, hours of overtime and tons of euros, we have seen the most diverse requests from municipalities pass by. From completely crammed centimeters thick selection guidelines to a few A4 sheets with vague specifications. From flat land bids to requests where the land price is a given and only quality matters. Invitations where you receive a decent compensation for the costs incurred to invitations where you get nothing and where without shame 5 parties are asked to make a disproportionate (financial) effort. In any case, we can say that, with the lost selections, we as a company are now able to make a substantial contribution to an exhibition entitled "Never Built Holland. Fortunately, we are also still able to make a winning submission a few times a year.

We see municipalities struggling with the type of solicitation. Grip on the outcome and especially on the eventual realization of that outcome is still very difficult. All too often, parties run off with the profits based on promises they cannot keep. When they are unable to 'renegotiate' these promises in the process of development, the result is often a project with mediocre spatial quality and the project is not sold or is sold with difficulty, even in this housing market, resulting in delays. In addition, a major disadvantage of a tender is often that the creativity of the market remains partly unused. The request is framed in advance as much as possible in terms of spatial, financial or programmatic principles. We then see a stacking of ambitions of the municipalities included. On the one hand this is understandable, but the fact that 'poldering' takes place beforehand means there is a chance that the creativity of a developer who has a great vision, but falls just outside the framework, will be missed. A consultation round prior to the call for tenders can largely overcome this disadvantage. 

Fortunately, we also see tremendously beautiful projects emerging. The quality and professionalism of submissions has risen enormously in recent years, but fortunately the applications are also getting better and better. It has become a specialism, you don't just do it on the side as a developer. We are learning together and hopefully together with municipalities we will arrive at the ideal request for proposal.