A hose-washing machine for the Antwerp fire brigade: raise the sister companies’ double bid only in your rejoinder, and you are too late
D. Van Mol lost the supply of a hose-washing installation for the Antwerp fire brigade to P. Vanassche & Cie by 88.54 to 91.22 points and challenged the addition of 7,000 euros of maintenance to its price, the ergonomics assessment (17 versus 11 manual operations) and the fact that Vanassche and its sister company Vanassche Services had each submitted a bid under the same signature; the Council of State rejected everything, and dismissed the competition argument without even examining it, because it was raised for the first time in the rejoinder.
What happened?
In October 2008 the City of Antwerp launched a general call for tenders for the ready-to-use supply of a hose-washing installation for its fire brigade, estimated at 220,000 euros including VAT. Specification PO/CAL/2008/8116 asked, besides the total price, for a lump sum for an annual maintenance contract, and stipulated that twice that maintenance amount would be added to the supply price when comparing prices. The award criteria were price (30 points), technical quality (60) and service level (10). Under the quality criterion the specification listed a number of ‘points of attention’: ergonomics and maximum automation, minimal handling of the hoses during drying, and durable, corrosion-resistant materials. Four companies bid: P. Vanassche & Cie, its sister company Vanassche Services, Aquaflam and D. Van Mol. Vanassche Services was excluded because its machine could not handle the required twelve hoses per hour. Among the remaining three, Aquaflam won the price criterion with 144,460 euros (30 points), followed by Van Mol at 151,844 euros (28.54) and Vanassche at 159,195 euros (27.22). On quality Vanassche scored 55, Van Mol 51 and Aquaflam 48; on service Aquaflam scored 10 and the other two 9. Final result: Vanassche 91.22, Van Mol 88.54, Aquaflam 88. The college awarded the contract to Vanassche on 19 December 2008. Van Mol protested by letter in January 2009: the city had added 7,000 euros of maintenance (twice 3,500 euros) to its price although, in its view, the first two years were covered by the basic warranty, and the Ziegler machine offered by Vanassche would exceed the maximum power consumption of 20 kW. The city rebutted both points. Before the Council of State, Van Mol argued in a first plea that the price had been miscalculated, that the city had applied unannounced sub-criteria without a scoring scale and that the four-point quality gap (51 against 55) was nowhere objectively justified — the city had assessed its fully automatic, continuous system as if it worked hose by hose, and counted 17 operations for its machine against 11 for Ziegler, including opening and closing doors. Only in its rejoinder did a second plea appear: the bids of Vanassche & Cie and Vanassche Services had been signed by the same managing director, which according to Van Mol distorted competition (article 11 of the Act of 24 December 1993 and article 81 of the EC Treaty). The Council sided with the city on every point. From Van Mol’s inventory form — box 1 for the supply, box 2 with 3,500 euros for annual maintenance — and its passage on the warranty it could not be inferred that the first two years of maintenance were included in the supply price; a warranty against material and construction defects is, moreover, not the same as maintenance. The pages-long list in the award proposal was, according to the Council, primarily a check of technical compliance with the specification, not a set of hidden sub-criteria; the only real difference between the bids lay in the announced points of attention, ergonomics and automation, and the specification itself stated that the number of operations needed to clean one hose would be assessed. Opening and closing doors are real operations on Van Mol’s machine that happen automatically on the Ziegler. A four-point difference out of sixty remained within the bounds of a careful assessment. The energy argument had been developed too summarily in the application and only substantiated technically in later pleadings, so the city could not respond in time. The second plea, finally, was inadmissible: the double participation of the two Vanassche companies was already apparent from the contested decision, their common director J.V. and his wife were listed in the annexes to the Belgian Official Gazette, and in the niche market of hose-washing machines — where the three companies are based in the same small town — Van Mol could and should have raised this in its application. The Council dismissed the action and ordered Van Mol to pay the costs, set at 175 euros.
Why does this matter?
The judgment exposes three issues that keep recurring in public procurement practice. First, the line between a compliance check and hidden sub-criteria. Van Mol read the pages-long award proposal as a list of unannounced sub-criteria without a scoring scale; the Council saw it primarily as a check of whether each bid met the technical requirements of the specification. Such a check may be long and detailed, as long as it does not determine the points. The score difference itself had to be traceable to what the specification had announced — here the points of attention ergonomics and automation, with the number of operations per hose as the yardstick named in the specification. Second, price. A bidder who believes its maintenance is ‘included in the price’ must show that on the inventory form, not merely in a passage about the warranty. The Council read the form literally: an amount in box 2 is an amount that is counted as the specification prescribes. Third, and most instructive, procedural timing. Van Mol’s strongest argument — two sister companies with the same managing director each submitting a bid, offering the same machine in single and double configuration — was never assessed on the merits. Not because it was unfounded, but because it surfaced only in the rejoinder. The Council held that the information was available: the names of both bidders appeared in the award decision, the directors’ mandates in the Official Gazette, and in a niche market one knows one’s competitors. The same fate befell the power consumption of the Ziegler machine: Van Mol had only summarily repeated its technical criticism from the February 2009 correspondence in its application and substantiated it later, so the city could not respond in time. The judgment is thereby also a quiet warning for contracting authorities: whether affiliated companies may bid side by side remained unanswered here because the applicant was late, not because the Council took it lightly.
The lesson
For bidders: build your application completely from the outset. Everything you can derive from the award decision, the award report and public sources such as the Belgian Official Gazette counts as known from day one; a plea raised only in the rejoinder is declared inadmissible, however strong it may be. Also restate in full, with annexes, any technical criticism you already exchanged with the authority in correspondence, and rebut in the application itself the answer you already received. Fill in the inventory form the way the specification reads it: if it says twice the maintenance amount will be added to the price, that will happen, whatever your warranty clause says elsewhere. If you want the first years of maintenance to be free, put zero in that box or make it unambiguous. For contracting authorities: announce your points of attention in the specification and keep your score differences anchored to them; an extensive compliance check in the award report is permitted, but separate it visibly from the actual assessment so that nobody can read sub-criteria into it. Two affiliated companies bidding with the same machine escaped scrutiny here because of a procedural error by the applicant — do not count on that, and document yourself how you deal with double participation by group companies.
Ask yourself
Before filing your application, have you checked the directors’ mandates of all bidders in the annexes to the Belgian Official Gazette, so that an argument about affiliated companies is not dismissed as belated? Is every technical criticism you already exchanged with the authority by letter fully developed and annexed in the application, including your rebuttal of the answer you received? Does your inventory form read the same as your bid text, or can the authority add a maintenance amount you actually intended to be free? As a contracting authority, can you trace the score difference between two bids to a point of attention that appears literally in the specification, measured by the yardstick you announced there? And is it clear in your award report where the compliance check ends and the assessment against the award criteria begins?
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 →