Chinese bluestone in Melsele: offering a second price for compliant materials is not a variant — and a new plea in the rejoinder comes too late
The municipality of Beveren awarded the road and sewerage works in the village centre of Melsele to Kembo on the basis of its ‘adjusted unit prices’ for Chinese rather than Belgian bluestone; the second-ranked bidder Interplant called that a prohibited variant, but the Council of State held that Chinese bluestone meeting Standard Specification 250 is not a variant, refused to examine the plea about ‘two basic tenders’ (art. 103 of the Royal Decree of 1996) raised only in the rejoinder, and dismissed the action.
What happened?
The municipality of Beveren launched an open tender for road and sewerage works in the village centre of Melsele (specification no. 9N238.1). Eight contractors submitted tenders, including Interplant and Kembo. The specification prescribed ‘dressed bluestone’ for the paving, described as ‘petit granit’, and declared Standard Specification 250 of the Flemish Community applicable. That standard specification allows, besides ‘petit granit’, other dressed limestones, as long as the tender documents do not further specify the origin. Interplant priced the bluestone tile item (24.2.1) at 306,660 euros, at 57 euros/m² for an estimated 5,380 m², with stone from China. Kembo charged 554,355.20 euros (103.04 euros/m²) in its basic tender for Belgian stone, but added a note: if the materials could be ‘of Eastern origin’, it offered adjusted unit prices of 54.97 euros/m² for the tiles and 41.40 and 16.10 euros for the kerbs. ATF did the same (68.90 euros/m²). On 31 March 2005 the municipality asked Interplant for a price justification under article 110 of the Royal Decree of 8 January 1996 and for the origin of the stone; Interplant confirmed the Chinese origin and supplied a technical sheet with COPRO certification. The tender report of 22 April 2005 found that, according to COPRO, Chinese bluestone meets Belgian standards and Standard Specification 250, that Interplant’s price justification was acceptable, and that Kembo, with its adjusted prices, became the lowest bidder: 1,298,199.34 euros excl. VAT. On 25 April 2005 the municipal executive awarded the contract to Kembo, subject to production of the COPRO certificate, and ranked Interplant second. Interplant received a letter on 26 April 2005 that did not mention the available remedies, and the reasoned award decision on 25 May 2005; it lodged an annulment action on 11 July 2005. During the proceedings, reopened by judgment no. 211.146 of 10 February 2011, Interplant merged with Brufort and Arbel into Krinkels, which resumed the case on 28 July 2011. The Council first rejected the plea of lateness: a letter that does not state the remedies required by article 19, second paragraph, of the coordinated laws does not start the time limit, and the reasoned decision only arrived on 25 May 2005. On the merits, the Twelfth Chamber held that a variant presupposes executing the contract with a different technical process or different materials from those prescribed; supplying and laying Chinese bluestone, however, complied with the specification, so there was no variant and the plea lacked a factual basis. The complaint that Kembo had then submitted ‘two basic tenders’ contrary to article 103 of the Royal Decree of 8 January 1996 was raised by the applicant only in its rejoinder. The Council refused to examine it: article 103 is not a matter of public policy, the complaint could already have been made in the application, and the earlier reference to the principle of equality had been made only in the context of a variant, not of several compliant tenders. The action was dismissed and Krinkels was ordered to pay the costs, set at 175 euros.
Why does this matter?
The judgment draws a sharp line between two figures that are often confused in practice: the variant and the double tender. A variant is an execution using a different process or different materials from those the specification prescribes. A bidder who offers an alternative that simply falls within the specification — here limestone meeting Standard Specification 250, even if it comes from China — is not submitting a variant, and the prohibition on unauthorised variants does not apply. The real question was a different one: may a bidder quote two prices for the same item in a single tender, with a conditional note ‘if the municipality accepts Eastern stone’? Article 103 of the 1996 Royal Decree (today reflected in the rule that a bidder may submit only one tender per contract) seems to offer an answer, but the Council did not give it — because the plea came too late. That procedural aspect matters at least as much as the substantive one: a plea that is given a ‘substantially different basis’ in the rejoinder is treated as a new plea and is inadmissible unless it touches public policy. The Council expressly says the one-tender rule does not. For contracting authorities the judgment holds up a mirror: the municipality awarded the contract on the basis of prices set out in an attached note, which only became ‘adjusted’ once the municipality itself had decided to accept Chinese stone. That the Council did not censure this approach is due to the procedural outcome, not to substantive approval. Finally, the judgment confirms a classic on time limits: a notification that does not mention the remedies does not start the limitation period — which is why an action of 11 July against a decision of 25 April was still timely.
The lesson
For bidders: if you want to challenge an award because a competitor worked with two prices, set out from the application onwards every possible characterisation — prohibited variant, double tender (one-tender rule) and breach of equal treatment as an independent plea. If you wait until the rejoinder to find the right basis, it is too late: the Council will see a new plea that is not a matter of public policy. If you want to offer materials of a different origin yourself, check whether the standard specification allows them; if so, it is not a variant and you need not add anything ‘alongside’ your tender — Interplant was right on that point, and still lost. For contracting authorities: a conditional note with alternative unit prices in a tender is a risk. Either write the permitted materials and their origin unambiguously into the specification (Standard Specification 250 expressly allows this), or take a clear position on how you deal with such notes before you draw up the ranking. And mention the remedies and time limits in every notification to unsuccessful bidders, otherwise the limitation period does not start and your award remains open to challenge for months.
Ask yourself
Do you know the difference between a variant (a different process or different materials from those the specification prescribes) and a tender that simply chooses a cheaper material within the specification? When challenging an award, have you included every conceivable basis in the application — or are you counting on adding it in a later brief? Is the one-tender rule a matter of public policy in your view? The Council says no. As a contracting authority: how do you handle a tender that quotes two unit prices for the same item, depending on a choice you still have to make? Is that choice in your specification, or do you make it only at the award stage? And do your notification letters mention the remedies and time limits?
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 →