Four bids from one bidder, one degree of negative incline: why the challenge to Aalter’s turntable ladder failed before it began
Fire Technics and Iveco Magirus challenged the award of a turntable ladder worth over half a million euros, but had themselves submitted two and four proposals respectively while the specifications banned free variants — prima facie irregular bids, so that their interest depended entirely on the single plea touching the winner’s bid, and when that technical plea failed the prima facie test, both applications were dismissed.
What happened?
In April 2011 the municipality of Aalter tendered a supply contract for a vehicle with an automatic turntable ladder for its fire service, intended for rescue, firefighting and technical assistance operations at height. The contract was estimated at 524,793.39 euros excluding VAT, published in the Belgian Bulletin of Tenders of 21 April and in the Official Journal of the European Union of 27 April 2011, and awarded by open call for tenders on three criteria: price (40 points), technical value (45) and demonstration (15). The specifications expressly banned free variants and split the technical requirements into mandatory requirements — exclusion criteria — and requirements that merely earned extra credit. On 14 May 2011 the managing director of Fire Technics told the municipality that Magirus could not meet every point of the specifications and suggested amendments, noting that the text had been changed so that nobody was excluded any more. Corrigendum no. 1 followed on 25 May, replacing among other things the requirement of a negative incline of at least 20° for deep-level rescue with at least 17°, measured all round the vehicle in a normal outrigger procedure, and enclosing an amended tender form. Four bidders submitted: Iveco Magirus (510,000 and 517,000 euros), Fire Technics (524,790 and 531,790 euros), Somati (510,479 euros) and Somati Vehicles (512,680 euros), all excluding VAT. On 1 August 2011 the college awarded the contract to Somati as the most advantageous regular bidder; the unsuccessful bidders received a copy of that decision on 10 August and the evaluation report only on 22 August. Both losers applied for suspension under extreme urgency on 23 and 24 August. The Council joined the cases and went straight to the question of interest. The municipality argued that the bids were irregular because the amended tender form had not been used; that objection was rejected, not least because the municipality had itself dismissed that defect as non-essential in its own evaluation report. But the Council found something weightier of its own motion: Fire Technics had made two proposals — the same ladder on a different chassis — and Iveco Magirus four, including a different ladder, each labelled a ‘suggestion’, and the municipality had assessed and ranked them separately. Since the specifications banned free variants and all the proposals appeared to meet the technical requirements, both bidders had prima facie submitted more than one bid contrary to article 103 of the Royal Decree of 8 January 1996, so that all their bids appeared irregular. An irregular bidder nevertheless retains an interest where it shows that the contract could not lawfully have been awarded to any bidder. Of the seven pleas raised, only one qualified: the complaint that Somati’s bid did not meet the mandatory requirement on negative incline. Strictly, the applicants targeted only Somati and not the runner-up Somati Vehicles, but since the file showed the latter offered the same ladder, a well-founded plea would have hit its bid too. The action would therefore be inadmissible only if that single plea was not serious — and the Council limited its examination accordingly. A technical plea, it held, can lead to suspension only where its seriousness is apparent from a swift and very prima facie examination without expert assistance; the applicants had not requested an expert report. Somati’s ladder data sheet did mention 15°, but also 22° in smaller print, and the illustration appeared to bear that out. In its bid Somati had entered ‘OK 17°’ under article 10.2.1, applying the horizontal-vertical outrigger system and not around the cab area. The jury members confirmed on oath that Somati had demonstrated compliance during the demonstration. Finally, the Council noted that the contested clause, with its specific measuring method, had just been amended following Fire Technics’ own email. The implausibility of the municipality’s explanation was not established; the plea was not serious, and that finding sufficed to dismiss both applications.
Why does this matter?
This judgment exposes two mechanisms that together can sink a suspension procedure before the substance is ever reached. The first is the ban on submitting more than one bid. Where the specifications exclude free variants, offering ‘suggestions’ — the same ladder on a different chassis, or a different ladder altogether — amounts to submitting several bids, and that makes all of them prima facie irregular. That the authority dutifully assessed each proposal separately does not save the bidder: the Council looks at what was submitted, not at how the municipality handled it. The consequence is far-reaching, because an irregular bidder loses its interest in five of its seven pleas — criticism of the reasoning, of the scoring, of the missed demonstration, of alleged misuse of power: all arguments that would at most produce a reassessment in which it can no longer take part. Only the plea showing that the contract could lawfully have gone to nobody survives. The second mechanism is how technical pleas fare in interim proceedings. An argument that comes down to comparing incline angles and measuring methods does not lend itself to prima facie review; a party that builds on it without requesting an expert report runs the risk that the Council will settle for an explanation from the authority that is not implausible — here supported by the jury’s sworn statement after the demonstration. There is also an irony that makes the case instructive: the very standard litigated over had just been relaxed and given a measuring method at the applicant’s own request, who had then written that nobody was excluded any more.
The lesson
Never offer two versions of your solution where the specifications ban free variants, not even under the innocent label ‘suggestion’ or ‘alternative chassis’. In the Council’s eyes you are then submitting several bids, rendering all of them irregular — and that leaves you defenceless: you lose your interest in every plea that would merely produce a reassessment. If you want to challenge an award while your own bid is vulnerable, aim your pleas not only at the winner but at every remaining bidder: you must show that the contract could lawfully have gone to no one. If your criticism rests on a technical difference — an angle, a capacity, a measurement — prepare evidence that convinces at first sight, and expressly request an expert report where needed. If you are the contracting authority, this judgment shows what a well-documented file is worth: a bid in which the bidder expressly confirms the mandatory requirement and states the measuring method, a demonstration showing it in practice, and a written finding by the jury sufficed to withstand the criticism prima facie. But note the mirror image: by dismissing a defect in the tender form itself as ‘non-essential’, the municipality could no longer rely on it later to contest the applicants’ interest.
Ask yourself
Where the specifications exclude free variants, did you really submit only one proposal — or did your commercial reflex add ‘suggestions’? Do your pleas target every remaining bidder, or only the winner? Can a judge grasp your technical complaint without an expert, and if not, did you request that examination? Did you ask for the reasoned decision and the reports in good time, knowing your deadline was running? And as an authority: do you set out mandatory requirements unambiguously as exclusion criteria, with the measuring method, and do you document what a demonstration established?
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 →