Schaarbeek’s inflatable tennis hall: an authority that calls the uniformity coefficient essential to exclude the lowest bidder cannot overlook it for the winner
Satec, at EUR 288,703.58 the lowest of three tenderers for the new inflatable hall of the Royal Tennis Club Lambermont, was rightly excluded because its own tender stated a lighting uniformity coefficient of 0.53 where the specifications required at least 0.7 — but because the municipality of Schaarbeek never checked that same coefficient for winner Vermeyen, the award falls on the principle of equal treatment.
What happened?
In May 2010 the municipality of Schaarbeek launched an open call for tenders for the replacement of the inflatable hall and accessories of the Royal Tennis Club Lambermont, estimated at EUR 420,000 including VAT. Three contractors tendered: Vermeyen (EUR 369,187.70), PPR-Vibed (EUR 314,379.18) and Satec (EUR 288,703.58). The award report declared only the most expensive tender, Vermeyen’s, regular: the documentation of Satec and PPR-Vibed described a heating system with ventilation at ground level instead of through the dome, and achieved a lighting uniformity coefficient of 0.53 where the specifications — with a view to national tournaments — required at least 0.7. The college awarded the contract to Vermeyen on 26 July 2010; Satec only learned on 2 March 2011 that its tender had been excluded. Before the Council of State, Satec calculated that its coefficient, computed according to the 13 measuring points of the specifications, was actually 0.784 — but in its final brief it cast doubt on its own calculation by observing that it is unclear where exactly the measurements must be taken. The Council held that Satec therefore had itself to blame that the municipality relied on the figure of 0.53 in its own table, and that the exclusion on this essential technical point stood. But that was not the end of it: as the only ‘regular’ tenderer, Vermeyen could still be scrutinised at Satec’s request. And there the municipality admitted in its final brief that Vermeyen had not stated or documented any uniformity coefficient at all — which, it argued, was not required. The Council did not accept that double standard: an authority which at the time of award considers the statement of the coefficient essential in order to exclude Satec cannot maintain that it is irrelevant for another tenderer. The declaration that Vermeyen’s tender was regular was therefore wrong and the award unlawful. The Council annulled the award decision, dismissed the remainder of the action and ordered the municipality to pay the costs (EUR 175).
Why does this matter?
The judgment combines two mechanisms every tenderer and contracting authority should know. The first is procedural: a tenderer whose tender is rightly declared irregular normally loses its interest in challenging the award — except where the winner is the only tenderer declared regular. If that tender is irregular too, the contract could be awarded to no one and the whole procedure must be redone; precisely that interest saved Satec’s action. The second is substantive: the principle of equal treatment obliges the authority to apply the specification requirements with the same rigour to all tenders. Schaarbeek excluded Satec because its documented coefficient was too low, but saw no problem in the complete absence of any statement or documentation on Vermeyen’s side. That the municipality only conceded this in its final brief made the defence — ‘it did not have to appear from the tender’ — all the more painful. Whoever declares a requirement essential in order to push out the lowest bidder has set the bar the winner must clear as well.
The lesson
For contracting authorities: apply the regularity review symmetrically. Determine in advance which technical requirements are essential, check them in the same way for all tenders, and document it — a winner who silently escapes the test on which a competitor failed will cost you the award. For tenderers: re-read your own annexes before submitting; Satec failed on a figure from its own table, and its recalculation lost all force when it itself admitted the measuring method was unclear. And if you are excluded while only one ‘regular’ tender remains: request the administrative file and test the winner against exactly the same requirements on which you were rejected — the principle of equal treatment is then your strongest weapon.
Ask yourself
Do you check every essential specification requirement equally strictly for all tenderers, and does the award report show it? Would your exclusion of one tender survive if a court placed it next to your acceptance of another? As a tenderer: do the figures in your own technical sheets match what the specifications require, and what you claim elsewhere in your tender? And if you have been excluded: have you verified whether the only remaining ‘regular’ tender itself passes the test you were subjected to?
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 →