A two-millimetre edging costs Euroburo the lowest tender — but Leuven’s public welfare centre first loses the time-limit argument by sending the wrong report
The public welfare centre (OCMW) of Leuven rejected Euroburo’s lowest tender (522,869.71 euros excluding VAT) for the fitted furniture of the Ter Putkapelle care home on grounds of three departures from the specifications and abnormally low prices, and awarded the contract to Convents Products for 554,105.92 euros; the Council of State held the action admissible in time because the OCMW had initially forwarded the withdrawn evaluation report, but dismissed it on the merits: a finishing requirement affecting every single item of the tender undermines the comparability of tenders and makes the irregularity substantial — which rendered all remaining grievances, including those on the abnormal-price procedure, superfluous.
What happened?
The OCMW of Leuven launched an open call for tenders for the construction of the Ter Putkapelle care home in Wilsele, lot 7: fitted furniture, governed by special specification no. 370. On 3 March 2009 nine tenders were opened. Euroburo’s, at 522,869.71 euros excluding VAT, was the lowest. The consulting architects De Gregorio & Partners drew up an evaluation report on 9 March 2009 and sent it to the OCMW by email on 16 March. Two days later, on 18 March 2009, the firm announced that it was withdrawing that report pending an amended version. On 31 March 2009 it produced a new report, which reached the OCMW on 1 April. That second report was devastating for Euroburo. The technical review noted three points that did not match the specifications: carcasses with a 2 mm PVC edging were ‘not desired’; under article 57.61 ‘curtain cabinets’ it was not expressly stated that the painting work prescribed by the specifications was included; and under article 57.71b ‘reception-desk wall unit’ all externally visible parts and overlay doors were made of MDF, which did not match the specifications. The price review found that Euroburo’s total price lay 13.08 % below the average and 12.03 % below the estimate, and that for five of the eight lower items examined it fell more than 15 %, and up to 32 %, below the average — together a quarter of its bid, or 135,717.34 euros. The architects placed both findings side by side: the technical departures ‘could be an explanation for this’. They advised awarding the contract to the second-lowest and regular tender, that of Convents Products, at 554,105.92 euros excluding VAT — 6.77 % below the corrected estimate and 7.89 % below the average. On 9 April 2009 the OCMW followed that advice. By letter of 22 April 2009 Euroburo learned that the contract had gone to Convents Products. It requested the reasoned decision by emails of 24 and 30 April 2009 and by letter of 11 May 2009. On 12 May 2009 the OCMW sent it the award decision — accompanied by the withdrawn report of 9 March 2009. Only by letter of 24 June 2009 did the OCMW forward the ‘final’ report of 31 March 2009, describing the 9 March one as merely provisional. Two days later, on 26 June 2009, Euroburo brought its annulment action. That sequence saved the action. The OCMW and the architects argued that time had started to run on 23 April 2009, the day after the notification letter. The Council of State rejected that objection: only with the letter of 24 June 2009 was Euroburo able, for the first time, to acquaint itself with the reasons for the contested decision, so the action of 26 June 2009 was in time. The second objection failed too. That the contract had meanwhile been performed, that reparation in kind had become impossible and that Euroburo had never sought suspension did not deprive it of its qualified moral interest in the annulment action — not even as regards the implied refusal decision. On the merits the outcome was different. As to the two reports, the Council found that the one of 9 March 2009 had been expressly withdrawn by the architects and had at no point supported the OCMW’s decision-making; the OCMW therefore did not have to account for its adviser’s changes. And although the quotation in the award decision was not literally to be found in the report of 31 March 2009, it correctly rendered its final conclusion; through the express reference to that report, the reasons for rejecting Euroburo’s tender were made explicit. The heart of the case lay in the first departure. Euroburo maintained that the specifications said nothing about edging. The architects pointed to the technical provisions of the general specification, article A.2 ‘Wooden Board Materials’, sub-article ‘HPL Boards’: ‘Cladding of front panels (in the case of chipboard): high-pressure laminate board, class HPL-EN 438 VGP or P 222, thickness 0.8 mm.’ What applies to the visible surfaces applies to the edges. The Council followed that reasoning: Euroburo did not show that the specifications allowed a different method of execution for the edges of the front panels, let alone a 2 mm PVC layer. Its tender therefore breached the technical requirements. Then came the decisive blow. The architects argued that this was a finishing feature ‘affecting every item of the entire tender’. Euroburo did not contradict that; it merely maintained that the point was not essential because it was not in the specifications — a proposition the Council had just rejected. Because the irregularity affected every item, it had to be regarded as substantial and as jeopardising the comparability of the tenders. The tender had therefore rightly been found irregular. Euroburo moreover identified no legal or regulatory provision requiring a contracting authority to consult a tenderer whose tender has been found substantially irregular. It consequently no longer had any interest in the remaining grievances — including the entire second branch on the mandatory justification procedure for abnormal prices: those concerned superfluous reasons. The second plea repeated part of the first and shared its fate. The Council dismissed the action. Euroburo was ordered to pay the costs of the annulment action, assessed at 175 euros; the intervening party bore the costs of its intervention, assessed at 125 euros.
Why does this matter?
This judgment contains three lessons that rarely converge in a single case. The first is procedural and works in your favour. The time limit for bringing an action does not start with the polite letter telling you that you did not win the contract, but at the moment when you can actually know the reasons for that decision. On 12 May 2009 the OCMW did send the award decision — but with the wrong, withdrawn report attached. That cost the authority two months: only the letter of 24 June set the clock running. An authority careless with its file thus itself extends the period during which it can be attacked. And a tenderer who keeps asking for the reasoned decision — Euroburo did so four times — is meanwhile building the evidence that it did not yet have those reasons. The second is equally reassuring: you do not lose your interest in an annulment action because the contract has since been performed, nor because you never sought suspension at the time. The qualified moral interest survives. That matters in practice where annulment is the stepping stone to a claim in damages. The third is the hard one. An irregularity is weighed by its reach, not by its price tag. A single finishing requirement — the edge of a front panel — looked like a detail, but because it recurred in every item of the tender it went to the comparability of the nine tenders and became substantial. And once a tender is substantially irregular, the argument about everything else disappears: about the second and third technical points, and even about whether the OCMW should have invited Euroburo to justify its strikingly low prices. Those grievances went only to superfluous reasons. A bidder who comes in 13 % below the average while making a technical departure that runs through the whole specification hands the authority precisely the link the architects made explicit here: the low price is explicable because something different is being offered.
The lesson
Read the general part of the specifications as carefully as the items of the bill of quantities. A technical specification placed under ‘general provisions’ — here a 0.8 mm high-pressure laminate for the cladding of front panels — applies to the whole works, including the parts it does not expressly name. If you want to offer a better or different execution, obtain written confirmation beforehand or submit an expressly reasoned variant; the argument ‘my solution is of better quality’ has no place in the regularity assessment. If you realise that your departure recurs in every item, assume it is substantial. Manage your time limit actively as well. Request the reasoned decision and the evaluation report on which it rests immediately, in writing and repeatedly, and keep that correspondence: if you receive the wrong or a withdrawn document, your time limit only starts when the right one arrives. And do not be discouraged by the fact that the contract is already being performed — your interest in annulment survives. As a contracting authority, the points are the mirror image. With the reasoned decision, send the report you actually relied on, not an earlier or withdrawn version: an error there hands the tenderer weeks or months of extra time. Refer expressly to that report in your award decision — reasoning by reference is accepted, even where you do not quote literally, as long as you render the purport correctly. And where you rely on your designer’s advice, make sure it is clear which version of it supports your decision.
Ask yourself
Have you placed the general technical provisions of the specifications alongside your tender, and not merely the articles that expressly name your items? Do you know whether a departure you are making recurs in every item — and do you realise that it then counts as substantial because it undermines the comparability of tenders? Have you requested the reasoned decision and the underlying evaluation report in writing, and are you keeping that correspondence as evidence of when your time limit began? Do you realise that a single substantial irregularity reduces all your other grievances — including those on the abnormal-price procedure — to criticism of superfluous reasons? And as a contracting authority: do you send, with the reasoned decision, the report you actually relied on, in its correct and final version?
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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 →