Inviting four firms and then claiming ‘technical specificity’: IGEAN sees the award of the Pulderbos swimming-pool filters annulled
IGEAN awarded the replacement of the Pulderbos swimming pool’s filter installation through a negotiated procedure without publication ‘on account of technical specificity’ to Lotec Belgium, which was more expensive than Albatros Contracting but offered more energy-efficient pumps; the Council of State annuls the award because a contracting authority that itself invites four companies cannot maintain that only one firm could do the job, and because it cannot fall back on extreme urgency after the fact.
What happened?
On 23 January 2008 the board of the intermunicipal association IGEAN (Intergemeentelijke Vereniging voor Grondbeleid en Expansie Antwerpen) decided to replace the filter installation of the Pulderbos swimming pool. The works had to start right after the construction holiday, on Monday 4 August 2008, because schools and clubs had to be able to use the pool again from 1 September 2008. Only on 15 April 2008 did IGEAN invite four companies to a negotiated procedure without publication for removing the existing installation and supplying, installing and commissioning a new one. The specifications required the contractor to confirm that the pool could open for school swimming on 1 September 2008 at 8 a.m., asked for a lump-sum price, but contained no award criteria at all. On 5 May 2008 three tenders were opened: from Albatros Contracting, Lotec Belgium and Visser & Smit Hanab. After price correction and discounts, Albatros was the cheapest at EUR 146,531.00, ahead of Lotec (EUR 149,059.90) and Visser & Smit Hanab (EUR 189,156.88), all VAT included. IGEAN also had the electricity consumption calculated: Lotec fitted its circulation pumps with frequency converters, so that the pool water is recirculated more slowly outside opening hours, worth an estimated EUR 10,754 over five years and EUR 21,508 over ten years. With the five-year saving factored in, Lotec came to EUR 174,440.40 and Albatros to EUR 182,666. On 7 May 2008 the board awarded the contract to Lotec Belgium, justifying the procedure by Article 17(2)(1)(f) of the Law of 24 December 1993: the ‘technical specificity’ of the contract. Albatros learned on 14 May 2008 that its tender had not been chosen and brought an action for annulment on 9 July 2008. IGEAN first disputed Albatros’s interest: the contract had meanwhile been performed and Albatros had never challenged the specifications. Following the auditor, the Council rejected that objection: Albatros retains a qualified moral interest in annulment even though the contract has been performed, and a defect in the specifications can still be raised against the later award decision. The argument that Albatros, as an invited bidder, had no interest in criticising the choice of procedure also failed: in a public tender or call for tenders it could have tailored its bid to explicit award criteria, such as energy consumption. IGEAN’s claim that Albatros would not have won anyway — the price difference was only EUR 2,528.90 and frequency converters would cost more — was dismissed as purely hypothetical. On the merits, the Council found that IGEAN in no way showed that only the chosen bidder could replace the filter installation; it had itself approached four firms. In its reply IGEAN then put forward a different ground, extreme urgency under Article 17(2)(1)(c). That cannot be done after the fact, the Council held, and in any event the start of the school year is not an unforeseeable event, all the more so since the decision to launch the contract had been taken on 23 January 2008. The unlawful choice of the negotiated procedure vitiates the entire award procedure. The Council annulled the award decision of 7 May 2008 and ordered IGEAN to pay the costs of EUR 175.
Why does this matter?
The judgment sets out the rules on the negotiated procedure without publication with clarity: it is an exceptional procedure, the grounds are interpreted strictly, the contracting authority bears the burden of proof and must examine whether the ground applies before deciding, not once it is challenged in court. Two lines of reasoning make the judgment especially useful. First: an authority that itself invites several companies undermines its own claim that only one firm can perform the contract. Second: a planning deadline known months in advance — here the reopening of the pool on 1 September — is not an ‘unforeseeable event’ justifying extreme urgency. The ruling on interest matters too. A bidder who was allowed to take part in the negotiated procedure may still challenge the choice of procedure, because a regular procedure with published award criteria would have allowed it to tailor its bid. And the authority cannot hide behind a hypothetical recalculation of who would then have won. Finally, the judgment shows that an action for annulment does not become pointless because the works have been carried out: by IGEAN’s own account the contract had already been performed when the Council ruled in May 2011, yet the Council recognised the unsuccessful bidder’s continuing interest.
The lesson
For contracting authorities: do not choose a negotiated procedure without publication because it is faster or more convenient. If you rely on technical specificity, you must be able to show that objectively only one suitable firm exists — and inviting four is then self-contradictory. If time is tight, plan ahead: letting three months pass between the decision to tender and the invitations and then invoking urgency does not work. Record the justification for the procedure before the award; a different ground in your reply brief saves nothing. And if energy consumption matters to you, put it in the specifications as an award criterion rather than using it as the decisive factor afterwards. For bidders: even if you were invited, you may challenge the choice of a negotiated procedure without publication. Check which exception the award decision relies on and whether the facts support it — a list of competitors who could equally have done the job is a strong argument. A performed contract does not make your action pointless.
Ask yourself
As a contracting authority: can I prove that only one firm can perform the contract, and is that consistent with the number of companies I invite? Does my reliance on urgency rest on a genuinely unforeseeable event, or on a deadline I have known for a long time? Have I justified the chosen exception in the award decision itself, and will I stand by it in any proceedings? Are all factors that determine the choice — such as energy consumption — included as award criteria in the specifications? As a bidder: have I checked which exception is invoked and whether it holds up on the facts, even though I was invited myself?
About this database
The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →