‘The right to visit’ is not a duty: the Justice department could halt the environmental-monitoring contract for its prisons after its own confusion over the site visit
When runner-up Enviro Engineering threatened suspension proceedings because the winner, Abesco, had never visited the sites, the Minister of Justice abandoned the award of the contract for monitoring the environmental files of the Flemish and Brussels prisons — and the Council of State upheld that decision: the specifications only gave bidders ‘the right’ to a visit, but because one of the authority’s own officials had presented it as compulsory and the authority itself had applied it that way when excluding another bidder, there was genuine confusion that could affect a price-only ranking.
What happened?
The Federal Public Service Justice put out an open tender under specifications no. MILIEU/2006 for monitoring the environmental files of the prisons in the Flemish and Brussels-Capital Regions, with price as the sole award criterion. The specifications contained two provisions on the site visit that did not fit together well. Article 14.2.1 stated: ‘Prospective bidders have the right to visit the place where the services will have to be performed.’ Article 8.3 listed the documents to be attached to the tender ‘in the context of the selection criteria’, including: ‘Produce proof of attendance on visit days’. The actual list of selection criteria in article 11 — six exclusion criteria, criteria on financial standing and two on technical capacity — did not mention the visit. At the opening on 17 February 2006 there were eleven tenders, including from Enviro Engineering of Sint-Truiden, Abesco of Tienen, Ecorem, Shanks, Ibeve, Aeolus and Sertius. On 8 September 2006 the Minister of Justice selected ten bidders — Ibeve dropped out —, declared all ten tenders administratively and technically compliant and awarded the contract to Abesco, which had offered the lowest price. Already during the standstill period, lawyers for Enviro Engineering, ranked second, had warned that Abesco could not produce proof of a site visit to the various prisons and that it would seek suspension under extreme urgency if the contract were awarded; by letter of 16 October 2006 Enviro Engineering was told its tender had not been retained. On 18 December 2006 it brought an action for annulment and an application for suspension against the decisions of 8 September 2006. Three days later, on 21 December 2006, the minister decided under article 18 of the law of 24 December 1993 to abandon the award. The reasoning was strikingly candid: there was a dispute about whether attendance at the site visits was compulsory, ‘an ambiguity created by the contracting authority’; several bidders had in fact read the specifications differently; it concerned an essential element that could influence the outcome through the tender price; correction was no longer possible because the ambiguity only surfaced at the award stage; and an award would in any event favour some bidders and disadvantage others. By judgment no. 167.756 of 13 February 2007 the suspension application was dismissed for lack of prejudice, precisely because the award had meanwhile been abandoned. On 15 March 2007 Enviro Engineering also challenged the abandonment itself. The Council of State joined both cases and dealt first with the action against the abandonment, since if it stood, the decisions of 8 September 2006 were implicitly revoked. The State’s objection that Enviro Engineering lacked standing — annulment would revive the award to Abesco — was rejected: without that second action the abandonment would become final and it would lose all interest in its first action. On the merits Enviro Engineering argued that the authority itself had excluded Ibeve for lacking proof of a site visit, and that everyone except Abesco had attended the visit days, so there could be no ambiguity. The State replied that Ibeve had been excluded for a missing certificate of good conduct and missing annual accounts, that one official had told Enviro Engineering that the visit was a selection criterion while two other bidders were told the opposite, and that besides Abesco, Ibeve had not made a site visit either and Aeolus had not attended the visit day for the lot it bid on. The Council took its own route. A provision that prospective bidders ‘have the right’ to visit imposes no obligation — so Enviro Engineering’s premise, that Abesco should have been excluded for not visiting, failed. But for that very reason the minister was entitled to find that there was a dispute: the file showed that one of the authority’s staff had treated the visit as compulsory in dealings with Enviro Engineering, and that this obligation was mentioned in the decision not to select Ibeve. That contradiction between the authority’s actual conduct and the wording of the specifications could be regarded as a source of confusion, with consequences for identifying the compliant tender with the lowest price. The first and second pleas were unfounded. The third plea — that by not re-tendering the State left the prisons without external environmental support, in breach of article 23 of the Constitution and Flemish environmental law — did not concern the contested decision, which merely discontinued the procedure. The action against the abandonment was dismissed; as a result Enviro Engineering no longer had an interest in its action against the original award, which was dismissed too. On costs the Council drew a distinction: ‘in view of the circumstances’ the State bore the costs of the first case (350 euros for suspension and annulment), Enviro Engineering those of the action against the abandonment (175 euros).
Why does this matter?
The judgment turns the applicant’s logic on its head. Enviro Engineering wanted to show that the site visit was compulsory, so that Abesco would be out and it would win the contract. The Council reads the specifications dryly and literally: ‘the right to visit’ is a right, not a duty. That defeats Enviro Engineering’s attack on the award — but also its attack on the abandonment. For if the text contains no obligation while the authority in practice acted as if it did — through an official who explained it that way to a bidder, and in the decision excluding another bidder —, the confusion the minister relied on is a finding, not a pretext. In a price-only award that is a concrete problem: a bidder who believes it must inspect the various prisons prices differently from one who skips that step. The judgment thus confirms the broad latitude that article 18 of the law of 24 December 1993 gave a contracting authority to abandon an award, provided it states adequate reasons — and the reasoning here, which acknowledged the authority’s own mistake without evasion, was sufficient. That latitude still exists today under article 85 of the law of 17 June 2016. A second, procedural lesson lies in the joinder. An unsuccessful bidder that challenges an award and then sees the authority discontinue the procedure must challenge that discontinuation too; otherwise it becomes final and the first action loses its object. Enviro Engineering did so correctly — the State’s objection failed — but lost on the merits. Finally, the costs order stands out: the State bears the costs of the first case. The Council says no more than ‘in view of the circumstances’, but the text leaves little doubt: it was the authority that had caused the confusion.
The lesson
For contracting authorities: what you write in the specifications and what your officials say on the phone must be the same thing. A site visit is either compulsory on pain of exclusion — and then you say so expressly, among the selection or compliance requirements, with the sanction spelled out — or optional, in which case you do not ask for ‘proof of attendance on visit days’ as a document to attach either. Ambiguous wording is not cured by an individual explanation to one bidder; it is made worse by it. If you only discover at the award stage that bidders have read the specifications differently on a point that affects price, abandoning the award and starting again is a defensible way out, provided you explain honestly why. For bidders: an oral answer from an official does not bind the authority against the wording of the specifications. If you are unsure whether a site visit or another requirement is compulsory, ask in writing before submission, so that the answer applies to all bidders. And if you challenge an award and the authority then discontinues the procedure, challenge the discontinuation in time as well — otherwise your first action loses its object.
Ask yourself
Do your specifications state unambiguously whether a site visit is compulsory, and what sanction follows if a bidder does not make it? Do you ask for documents with the tender that refer to an obligation that appears nowhere else in the specifications as an obligation? Are bidders’ questions answered in writing and for everyone, or do individual officials give oral explanations that may depart from the text? As a bidder: did you raise your doubt about a requirement in writing before submission, rather than relying on a telephone answer? If you challenge an award and the authority then discontinues the procedure: have you also challenged that discontinuation within the time limit?
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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 →