Challenger DDM accuses VDAB of an information gap in favour of incumbent NextiraOne — but both bids showed exactly the same holes
DDM Consulting challenged under extreme urgency the award of VDAB’s call-centre contract ‘Contract Support Servicelijn’ (estimated at 800,000 euros over four years) to incumbent NextiraOne, arguing that missing licence data, OPS files and serial numbers made it impossible to calculate a sound price and that the price sub-criteria were skewed, but the Council of State found from the confidential calculation table that both bidders had left the same items unpriced and that the authority had neutralised them for both — neither plea was serious.
What happened?
In March 2012 the VDAB, the Flemish employment service, issued a general call for tenders for the support and further development of its call-centre environment — the ‘Servicelijn’ contact centre with 160 staff across three locations, running on Genesys 7.5 and Alcatel telephony. The contract (specifications no. 2012/10240), estimated at 800,000 euros for the first four years and thus above the European threshold, comprised two blocks: supporting, maintaining and extending the Genesys solution and telephony, and the provision of a resident engineer four days a week. Award criteria: quality at 60 points, price at 40 — split into 30 points for block one and 10 for the resident engineer. Challenger DDM Consulting used the question round from 3 April 2012 onwards: the Genesys licence list in the price table did not match the information from Genesys itself, and it requested the OPS files of the telephone exchanges and the serial numbers of the NICE recording system. The VDAB answered piecemeal and late: the NICE serial number came on 23 April, a printout of the OPS configuration only on Friday 27 April — five days before the opening session of 2 May, with 1 May a public holiday in between. DDM was, however, allowed to adjust its price schedule to the quantities it had received from Genesys (‘no problem at all’). On 22 May 2012 the managing director awarded the contract to NextiraOne, the incumbent and only other bidder. DDM filed an extreme-urgency application on 15 June. Its first plea — breach of equality, transparency and due care through deficient information — foundered on a factual finding: the confidential calculation table (exhibit 9) showed that NextiraOne had likewise not priced exactly the same items (‘N/A’) and had added the same items as DDM, and that the VDAB had excluded all those items from the price comparison for both bidders. The alleged information advantage had thus not been cashed in by the incumbent, and DDM lacked an interest in its argument. Article 67 of the Royal Decree of 8 January 1996 moreover proved inapplicable to contracts with European publication. The second plea — the 30/10 weighting was inversely proportional to the real price weight, since a resident engineer costs 580 to 650 euros a day — failed too: the weighting had been clearly stated in the specifications beforehand, and DDM’s calculation assumed 208 days of presence a year whereas 130 to 150 days is realistic, allowing for holidays and illness. Moreover, exhibit 9 showed DDM’s total price was higher than NextiraOne’s anyway, so even a comparison on total price would not have saved it. The Council rejected the application on 10 July 2012 and ordered DDM to pay the costs of 175 euros.
Why does this matter?
The case touches a classic sore point: the challenger bidding against an incumbent and feeling disadvantaged by its inside knowledge. The judgment shows how the Council tests such an argument — not on principle, but on the concrete result. Because both bids showed the same gaps and the authority neutralised them symmetrically, the proof evaporated that the information gap had distorted the price comparison. Notable, too, is that the Council let the VDAB’s pragmatic ‘price basket’ approach — mathematically aligning diverging quantities, striking incomparable items for both bidders instead of declaring both bids irregular — pass prima facie, with the observation that an overly formalistic attitude would have reduced competition to zero. The judgment further confirms that highly technical grievances requiring expert examination fall outside the contours of the extreme-urgency procedure: whoever raises one must substantiate it concretely, with figures, in the application itself. And the second plea is a reminder that the weighting of (sub-)criteria stated in the specifications beforehand is hard to attack afterwards — certainly by a bidder whose own arithmetic turns out to rest on an unrealistic assumption.
The lesson
For bidders: do not attack an information gap in the abstract, but show with figures how it concretely affected your price and the comparison — here the file itself refuted the claim, because the incumbent had left the same items unpriced. Criticism of the weighting of award criteria comes too late after the award: the weighting was in the specifications, and whoever finds it unbalanced must raise that during the question round or against the specifications themselves. Check your own calculations mercilessly before making them the core of a plea; one unrealistic parameter (208 instead of 130–150 working days) sufficed to sink the plea. For contracting authorities: document your comparison method carefully — the confidential calculation table was the document that demonstrated equal treatment and decided the case. And whoever neutralises gaps in the specifications identically for all bidders can count on the Council’s understanding; whoever treats one bidder differently cannot.
Ask yourself
As a challenger, can you demonstrate concretely and with figures that the incumbent’s information advantage distorted the price comparison — or does it remain a matter of principle? Did you question the weighting of the award criteria during the question round, rather than only after losing the award? Are the parameters in your damage calculations realistic and verifiable? And as a contracting authority: do you keep a detailed calculation table showing that you treated deviations and gaps identically for all bidders — the document that lets you survive interim proceedings?
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 →