Bedpan washers for AZ Vesalius: the price formula may have been changed, but a bidder who finishes third — and stays second even in its own recalculation — has no interest in complaining
AZ Vesalius awarded the supply of 10 to 18 bedpan washers to Arjohuntleigh (Typhoon, 71.02 points) after a trial set-up in which it applied a different price formula from the one announced in the specifications; the Council of State dismissed the extreme-urgency application of the third-ranked Meiko, because Meiko would finish no higher than second even on its own recalculation (fourth according to the auditor), because a contracting authority may elaborate the technical requirements of the specifications during a trial set-up, and because a pleading note filed only the afternoon before the hearing is excluded from the debate.
What happened?
In June 2011 the Algemeen Ziekenhuis Vesalius launched a general call for tenders for bedpan washers — cleaning and disinfection machines for bedpans, urinals, commode buckets and kidney dishes — in a lot 1 of 10 machines (2011) and a lot 2 of 8 machines (2012), together estimated at 160,930 euros. Specifications 2011/029 allotted 40 points to price (30 for the machine, 10 for the maintenance contract), 50 to the characteristics of the machine and 10 to the delivery period. For price it referred to 'a legally determined formula' based on the lowest price; an automatic door had to be priced 'as a mandatory option', and the hospital reserved the right to request a machine on trial. On 20 July 2011 seven tenders were on the table, from 81,108.36 euros (Romed) to 235,370.34 euros (Heyer Benelux); Meiko bid 205,058.70 euros, Arjohuntleigh 128,452.81 euros. A working group tested the machines in a trial set-up using a checklist on which 5 or 10 of the 50 points were deducted per missing characteristic. For price the hospital did not apply the announced formula but A − (((X − Xmin) / (2Xavg − Xmin)) × A), expressly reasoning that the original formula gave only one bidder more than zero points on the maintenance contract and 'failed' four of the seven on the machines. Result: Arjohuntleigh Typhoon 71.02 points, Heyer 68.47, Meiko 63.70 (third), LDL Medical 63.63, Arjohuntleigh Tornado 61.82, Arseus 39.64 and Romed 39.55 — the last two with zero on characteristics. By registered letter of 14 February 2012 Meiko learned that its tender had not been retained, with the evaluation report attached. On 1 March 2012 it applied for suspension under extreme urgency. First a procedural point: Meiko filed a pleading note with technical and numerical rebuttals and a new third plea only in the afternoon before the hearing of 22 March 2012, although the hospital's observations and the administrative file had been at the registry for more than a week. The Council excluded the note: it would disproportionately restrict the hospital's right to be heard and escaped proper examination by the auditor's office. The first plea had two limbs. On the changed price formula the Council held that Meiko prima facie had no interest: it ranked sixth on price (18.70 points) and third overall, and even on its own calculation Heyer would come first and Meiko second — still not usefully ranked; according to the auditor that calculation was moreover wrong and Meiko would drop to fourth. Its argument that Romed and Arseus should have been excluded for their zero quality score (which would raise the average price) rested on far-reaching hypotheses and on no plea capable of leading to the exclusion of those tenders; the hospital had in any event excluded nobody for a deviant price, it had merely brought the average into the formula. On the automatic door: the specifications made it a mandatory option, the authority took up the option and thus compared all prices with the door — that the Typhoon has such a door as standard does not breach equality, and Arjohuntleigh in fact offered only the fourth cheapest machine price. The second limb targeted the trial-set-up checklist. That it contained a characteristic absent from annexes IV and V of the specifications — 'mechanical emptying behind a closed door', unique to the Typhoon, worth 5 points — did not prevent the technical requirements from being further elaborated during the trial; the characteristic tied in with the hygiene and user-friendliness requirements and Meiko did not rebut its added value with the evidence an extreme-urgency procedure demands. The complaints about the hard-to-swap loading frame (insufficiently proven), the question 'is the machine entirely in stainless steel?' (which, according to the Council, refers only to the parts the specifications required in stainless steel, the washing chamber; the storage tank could be plastic) and the extraction of vapours (Arseus and Romed lost 10 points because steam escaped into the room during the test, while the Typhoon has a condensation system the hospital explained at length at the hearing) also failed. The second plea — that delivery periods of 3 to 5 weeks were 'insincere' and that Heyer, which offered a Meiko machine, quoted a shorter period than Meiko itself — was unsubstantiated and did not concern the chosen bidder. No plea was serious; the Council dismissed the application.
Why does this matter?
The judgment contains a series of lessons that each recur often, but rarely together in one case. The most important is the interest in the plea: a contracting authority that applies a different price formula from the one announced in the specifications prima facie breaches patere legem quam ipse fecisti — but the Council does not even examine that if the applicant fails to show it would rank better under a correct application. Meiko stumbled precisely there: its own recalculation put a competitor first. Whoever challenges an award must therefore first let its own figures speak. Second lesson: the specifications are not the last word in a trial set-up. The Council accepts that an authority which reserves the right to test machines may 'further elaborate' the technical requirements during that test — even with a characteristic only one machine has — as long as it ties in with what the specifications put forward. That is a wide margin, and the contrast with judgment no. 221.135 (where a never-announced legend of minus marks led to suspension) shows the limit lies in using such checklists as a disguised regularity check. Third lesson, procedural but decisive: in an extreme-urgency procedure a pleading note arriving the afternoon before the hearing, when the other side's observations had been available for a week, is wasted effort — and wasted arguments, since the third plea it contained was never examined. Finally the mandatory option: if the specifications require an option to be priced, the authority may take it up and compare all prices including that option; that a competitor supplies it as standard is its competitive advantage, not inequality.
The lesson
For bidders: before going to the Council, calculate what a correct application of the specifications means for your own ranking. If you still do not finish first, you have no interest in the plea, however justified the criticism. File your technical and numerical rebuttal as soon as you have the other side's observations — not the day before the hearing — and put every plea in the application itself. Read the annexes to the specifications as a minimum, not a closed list: in a trial set-up the authority may look further, so show during the test what extra your machine can do. For contracting authorities: if you want to depart from the announced price formula, state your reasons expressly in the award report, as AZ Vesalius did — it did not save the decision by itself, but it made it defensible. Build your evaluation checklist on the requirements in the specifications and document why each additional point ties in with them; and use the checklist for the quality score, not to declare tenders irregular.
Ask yourself
Before challenging a changed price formula or another evaluation error, have you calculated yourself whether you would finish first under a correct application? Are all your pleas in the application, and is your rebuttal of the observations filed at the registry in time for the auditor's office to examine it? Do you know that a 'mandatory option' in the specifications may be taken up by the authority, so that your price with the option is compared? And as an authority: does every item on your test checklist tie in with a requirement in the specifications or their annexes, and have you stated your reasons for departing from the announced formula in the award report?
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 →