A Dutch municipality has been advised to follow a procedure on the merits to establish whether Domo Sports Grass did or did not deliver accordingly. Sportsfields.info explains the case.
The dispute revolves around the renovation of a synthetic turf football pitch in late 2021 when Domo Sports Grass won a tender to urgently replace the top layer to avoid the field being blacklisted by the Dutch FA. The renovated pitch passed the compulsory tests by an independent testing institute and was used without any issue until late 2022.
From that moment, things got murky. The municipality claims that it established that a different carpet was used than that which Domo Sports Grass initially had offered. Furthermore, the fibres of the new carpet were smaller than the minimum 380 and maximum 450 micron range the municipality had specified in its tender document. Domo Sports Grass says that it did notify the municipality of the change in carpet and that the 10% deviation it acknowledges still remains within the criteria used to define its quality.
The municipality disagreed with the view that it was notified by Domo Sports Grass about the change in carpet and that it certainly did not tacitly approve this decision. It also believed that, having defined a minimum and maximum micron range, additional deviation was unacceptable. It requested that the company replace the carpet, a request Domo Sports Grass declined, hence relief was sought from a judge to clarify the matter.
As the municipality is about to draft tender documents for upcoming installations and renovations of synthetic turf (carpets), it decided to request the legal procedure that would be the quickest in providing an answer.
Not the right court
The judge has ruled that it failed to see the urgency requested by the municipality. “The tender has already been completed, the agreement has already been concluded with Domo and this matter concerns a dispute about its implementation,” the judge writes in his ruling, which Sportsfields.info has seen. The judge substantiates this further by noting that the municipality had already indicated at the end of 2022 that it would legally enforce its claim, if necessary, and that the company was sued only in February for a case that came to court only at the end of March 2023. According to the judge, such a timeline doesn’t warrant the need for urgency. “Such a dispute [about the performance of the agreement] and also a dispute about whether there has been a material change during the performance, something that would allow the municipality under procurement law to not accept the synthetic turf supplied, as the municipality states it is intending to do so, does not make this case urgent by definition. After all, a decision on this can also be obtained in proceedings on the merits.” The court also ruled that a summary procedure is not the solution to provide the certainty desired by the municipality that it can enforce the contractual conditions in future tenders if it turns out that what has been requested and agreed is not delivered. “After all, the preliminary relief judge only gives a provisional judgment, which is not bound by a judge on the merits. Moreover, the complexity of the matter here invites the conduct of proceedings on the merits, which are surrounded by more safeguards than preliminary relief proceedings.” The latter is important, among other things, because Domo has taken the position that the municipality has (tacitly) agreed to the delivery of the carpet Domo installed. “In preliminary relief proceedings, however, there is no room for further evidence. Future disputes in future tenders cannot be prevented with this summary procedure either. To reduce this chance, it is more obvious to see whether it is possible to formulate the requirement, which is the subject of discussion between the parties, in such a way that no difference of opinion is reasonably possible about its interpretation.” According to the court, the claim by the municipality that the field will soon need maintenance is insufficiently substantiated to warrant a summary procedure.
Difference of opinion
With regard to the claim that Domo Sports Grass has not supplied the required fibre thickness, the court states: “In its primary claim, the municipality refers to the requirements in the specifications that must be met when installing a carpet. Its supplementary claim is that the work must be properly delivered, and in the additional supplementary claim concerning the delivery of the work, it notes that the prescribed minimum fibre thickness in the specifications and the contract are expected to be delivered. However, there is a dispute between the parties about how those requirements/regulations should be understood, including with regard to the test method to be used and whether or not a product margin is used.” According to the court, it doesn’t help the municipality that, in its claim, it refers both to the requirements in the specifications and to what is prescribed in the agreement. “The specifications require that the fibre thickness be between a certain minimum and maximum, while the agreement also refers to the specific product with a specific fibre thickness that Domo offered,” the judge ruled. He believes that the municipality should have specified in its claim what Domo should do and what exactly the product to be supplied should comply with. “That is all the more pressing now that the municipality has demanded compliance with the agreement under penalty of forfeiture. In that case, it must be completely clear to the party that has to perform what is expected of it in order to avoid an enforcement dispute. That is not the case at present.”
The judge does not address the question of whether or not the fibres used comply with the size that was specified. However, he is of the opinion that a summary procedure is not the appropriate method for negotiating such clarity. The court also concludes that the municipality itself has sown confusion in the claim by referring both to the requirements in the specifications and those of the product offered by Domo Sports Grass. The judge is of the opinion that the municipality must pay for the legal costs of Domo Sports Grass.
Why the focus on thickness?
The municipality used an experienced consultancy firm to draft the tender document. Sportsfields.info asked the municipality why it focused on a certain fibre thickness. “The municipality has set a minimum requirement for the fibre thickness of the artificial turf to prevent premature wear. This prevents higher maintenance costs and premature depreciation. The club where this carpet was installed has approximately 1300 members. In addition, the field is used for gymnastics education and childcare, and, due to its central location in the neighbourhood, the field is frequently used by youth from the neighbourhood. As a result, usage of the synthetic turf field is higher in contrast to other sports facilities. In order to install a better quality synthetic turf than the previous synthetic turf carpet, a minimum requirement was set for the fibre thickness,” explains a spokesperson for the municipality. According to the municipality, the permitted deviation was described in the request during the tender procedure. “Tenderers should offer a synthetic turf that meets the requirements of the specifications,” they believe. The municipality is now considering an amicable settlement, and, if that fails, subsequent steps in substantive proceedings to get a substantive ruling from the court this time.
Why do something different?
We asked Domo Sports Grass why it used a different carpet than what it defined when it submitted its answering tender documents. Furthermore, we asked them to explain why the fibres are 10% smaller in size than the minimum size defined in the tender document. The company has chosen not to share the explanations.
To understand how this can happen, Sportsfields.info asked an industry insider with over 25 years of experience in the production of synthetic turf for his opinion. “Yarn manufacturers maintain a tolerance in the fibre thickness because even one speck of dirt in the mould can result in a small deviation in the size of the yarn. That is why you can never guarantee a specific fibre thickness,” he says, explaining why an upper and lower limit in fibre thickness is used when specifying yarn. An additional 10% margin from the specs is also permitted when the carpet itself is subjected to the compulsory laboratory tests. “However, if that deviation is structural, then it seems that something else is at play.” One such thing could be that thinner fibres are cheaper to produce than thicker fibres. At the same time, he warns that buyers should refrain from trying to be a (technical) expert. “As a buyer, if you try to do that, you always lose because it is not your competency. Fibre quality is determined by many things. You have to deal with the quality of the masterbatch, the trim, or, for example, the processing. Furthermore, you can also vary a lot with the synthetic turf yarn itself. A 360 mu fibre that is 1.2 mm wide is almost identical to a 330 mu fibre with a width of 1.3 mm. Considering the carpet, here, the Dtex, gauge, stitch rate, number of grams per square metre and the pile height count. Those are five variables that one can play with to still achieve the same result. I believe that a buyer should not venture into such a technical discussion. That is why I always recommend asking for a certain performance instead of focusing on a technical specification. The latter may once have been correct, but it might have become outdated.”