A colour copy for 0.29 cents: the Council of State suspends the printer contract of Scholengroep 25 Brugge-Oostkust over an irregular bid and unchecked prices
Scholengroep 25 Brugge-Oostkust awarded the rental and all-in maintenance of 78 multifunctional printers to Alpha Center, although its devices fell short of the 1 GHz processor speed, the 80-sheet bypass tray and the 24-hour repair guarantee required by the specifications, and although it offered colour copies at 0.00290 euros — almost four times cheaper than a black-and-white copy; the Council of State held that the bid appeared substantially irregular and that the school group, by carrying out no price investigation at all, had acted carelessly, and suspended the award under extreme urgency.
What happened?
At the end of 2011, Scholengroep 25 of the Flemish Community education network (Brugge-Oostkust) launched a general call for tenders for a ‘rental and all-in maintenance contract’ for 78 multifunctional copiers, published in the Official Journal of the European Union on 20 December 2011. The specifications used four award criteria: price (35 points), technical and user value (35), service and after-sales (20) and safety and environment (10). Three bidders submitted offers: Alpha Center, Canon Belgium and Buro Center. In the evaluation report Alpha Center scored 92 out of 100, Buro Center 90 and Canon 85. The difference lay mainly in price: Alpha Center simulated an annual cost of 127,628.96 euros, against 170,997.10 euros for Buro Center and 188,108.81 euros for Canon. Alpha Center’s price per colour copy stood out: 0.00290 euros all-in, whereas its own black-and-white copy cost 0.01133 euros and the competitors asked 0.03640 and 0.04010 euros for colour. On the technical criterion the school group itself noted that Alpha Center’s type A and B devices did ‘not fully’ meet the processor-speed requirement (667 MHz instead of the minimum 1 GHz), yet it did not exclude the bid and merely deducted five points. The board of directors awarded the contract to Alpha Center on 26 March 2012; the general director confirmed this on 27 March 2012 in a ‘formal decision’ and notified the unsuccessful bidders. Buro Center applied for suspension under extreme urgency on 6 April 2012. It argued that the chosen bid was substantially irregular on three points: the processor speed, the manual bypass tray (the specifications required at least 80 sheets, Alpha Center’s product sheet mentioned 50 — although Alpha Center had stated 100 sheets in its bid, which it admitted at the hearing was an error) and corrective maintenance (the specifications required repair within 24 hours, Alpha Center promised repair within two working days if spare parts were unavailable). It also pointed to manifestly abnormal prices for colour copies, which the school group had accepted without any investigation. The Council of State followed Buro Center on both tracks. Technical specifications are in principle essential provisions of the specifications, and these specifications left little doubt: in its answers to bidders’ questions the school group had itself written that the devices had to meet ‘all’ minimum specifications and that deviations from clause 1.21 on maintenance meant ‘immediate exclusion’. The claim that the bypass tray was not the main use of the smaller type A and B devices, so that 50 sheets sufficed, appeared for the first time in the defendant’s written note and was nowhere in the administrative file; on the contrary, the comparison sheets relied on the erroneous 100 sheets. The Council did not accept such post factum reasoning. By accepting a bid that deviated on three essential points, the school group prima facie breached the principle of equal treatment: had the other bidders known those requirements were not essential, they could have offered cheaper devices or a cheaper maintenance guarantee. On prices, the Council recalled that an authority is not obliged to request a price justification when it does not reject a bid, but that the duty of care does oblige it to verify the regularity of the bid, and that a bid may also be irregular because of one or more abnormal unit prices. The argument that only the total price mattered ran up against the bid form itself, which asked for four separate unit prices. The price the school group currently paid for a colour copy (0.08137 euros) confirmed rather than refuted the abnormal character of the 0.00290 euros, and in the City of Harelbeke tender cited by Alpha Center itself colour was also dearer than black-and-white. The explanation Alpha Center gave at the hearing about allocating costs to the black-and-white price came too late: it was for the school group to request that explanation before the award. The second plea was serious. The Council suspended the decisions of 26 and 27 March 2012 under extreme urgency, declared the application inadmissible in so far as it targeted the choice of the general call for tenders (no plea was directed against it), and ordered the school group to pay costs of 175 euros; Alpha Center bore the 125 euros of its intervention. In the parallel judgment no. 219.169 of the same day, the Council reopened the debate on the application of the third-ranked bidder, Canon Belgium.
Why does this matter?
The judgment bundles two classic pitfalls in a single file. The first is the difference between ‘indicative’ and ‘essential’ provisions of the specifications. The school group had written that the quantities (copies per minute, paper capacity, sorting bins) were merely indicative, and tried afterwards to extend that flexibility to processor speed, bypass tray and repair guarantee. The Council read the specifications as written: the relaxation applied only to the listed quantities, and the authority’s own Q&A letters had precisely confirmed the essential character of the other specifications. Whoever accepts a bid that deviates from them has no discretion left — a substantially irregular bid must be set aside, even if it is the cheapest. Deducting five points is no substitute for exclusion. The second pitfall is the price investigation. The Council confirms the settled line that an authority need not query prices if it does not reject the bid, but adds the duty of care: when a unit price is inexplicable at first sight — a colour copy almost four times cheaper than a black-and-white copy and 28 times cheaper than what the authority currently pays — it is not enough to say that only the total price counts. A bid can be irregular because of a single abnormal unit price, especially when the bid form asks for that price separately. Finally, the judgment confirms that reasons appearing for the first time in the note filed with the Council of State do not count: what is not in the administrative file does not exist for the legality review.
The lesson
For contracting authorities: read your own specifications and your own answers to bidders’ questions before accepting a deviating bid. If you wrote ‘minimum 1 GHz’, ‘minimum 80 sheets’ and ‘repair within 24 hours, deviation means exclusion’, you cannot rescue a non-compliant bid with a points deduction or with an explanation you only think of before the court. And when a unit price looks odd to you — or a competitor points it out — request a price justification before the award and document your assessment in the file. For bidders: an award to a cheaper competitor can be challenged if its bid technically deviates from what the specifications impose as a minimum, or if its unit prices do not correspond to reality. Gather the evidence concretely: the competitor’s product sheet, the authority’s own current rates, comparable tenders. Here three precise findings were enough to obtain the suspension. For the successful bidder: whoever misstates an essential specification in its bid (100 sheets instead of 50) loses the benefit of the doubt once that comes to light.
Ask yourself
Do your specifications make clear which technical specifications are minimum requirements and which are merely indicative? Have you taken positions in your answers to bidders’ questions that you will have to respect later during the evaluation? Does your bid form list separate unit prices, and have you tested each of them for credibility rather than looking only at the total price? Is the reason why you find a deviation or a low price acceptable recorded in the administrative file, or does it exist only in your head? As a bidder: have you compared the successful competitor’s bid, as disclosed with the notification, point by point against the minimum requirements of the specifications?
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 →