Ghent University Hospital awards its 11.4-million-euro linen contract to Synergy Health ‘subject to adjustments’ — and sees the award suspended: a bid is judged as submitted
Ghent University Hospital awarded the rental and maintenance of flat linen, operating-theatre clothing and curtains (11,386,136.30 euros including VAT) to Synergy Health, but attached conditions to that choice in the evaluation itself — adjusted garment sizes, plastic instead of stainless-steel buttons and infrastructure works in the laundry within six months — whereupon the Council of State, on the application of runner-up Cleanlease Fortex, suspended the award: whoever scores on the basis of what a bidder must change after award is not judging the bid as submitted.
What happened?
Ghent University Hospital issued a general call for tenders for the rental and maintenance of flat linen, operating-theatre clothing and curtains, published on 10 January 2012 in the Public Procurement Bulletin and on 12 January in the EU Official Journal. Award criteria: cost 30%, service 30%, material 30% and laundry 10%. At the opening on 5 March 2012 four bids were on the table: Synergy Health (Lips Gezondheidszorg bv), Cleanlease Fortex, Clova and Initial. For the material criterion the linen working group assessed 68 samples per bidder; for the laundry criterion it verified, together with the hospital-hygiene department and on the basis of an audit, whether the bidders could comply with the recommendations of the Superior Health Council for the treatment of hospital linen. Synergy Health scored 96.15%, Cleanlease Fortex 93.48% — with strikingly narrow margins on material (0.79% in Cleanlease’s favour) and laundry (0.50% in Synergy’s favour). But the evaluation of the chosen bidder contained sentences that would decide the case: the pillowcase and fitted sheet had wrong sizes and ‘in the event of award the supplier must use a more adjusted garment size’; all gowns had stainless-steel buttons — which patients must remove for radiology — and the supplier ‘must be asked’ to use plastic buttons; and in the laundry the clean zone was not at positive pressure and the staff handling soiled linen had no separate sanitary facilities and changing rooms, to be remedied ‘within 6 months’ with a ventilation system, an airlock and infrastructure works. The decision-making creaked too: the ‘reasoned decision’ of the head of purchasing bore no date and was signed ‘by order’, the board of directors only adopted that proposal on 29 May 2012, and on 31 May only the undated document was notified to the bidders — a way of proceeding of which the Council drily noted that it ‘does not accord with the conduct to be expected of a diligent administration’. On the merits the Council held that articles 16 of the Act of 24 December 1993 and 115 of the Royal Decree of 8 January 1996 presuppose that bids are assessed as submitted. The findings about Synergy Health indicated that what was offered ‘precisely does not suffice’, and the wording ‘must’ was not without obligation. It could therefore not be ruled out that the comparison was made with what would actually be delivered rather than with what was offered, with possible impact on scores and price. That the evaluation of Cleanlease Fortex also contained remarks about its laundry did not deprive it of an interest: the Council cannot anticipate a reassessment. The first branch of the first plea was serious, and on 10 July 2012 the Council suspended the execution of both the undated decision of the head of purchasing and the board decision of 29 May 2012.
Why does this matter?
This judgment states a core principle of award law in its most tangible form: the bid you assess is the bid that was submitted — not the improved version the bidder might deliver after award. An authority that identifies shortcomings and massages them away with mandatory adjustments ‘in the event of award’ mixes two phases that must remain strictly separate, and thereby undermines both comparability and equality: the competitor was judged on what it offered, the winner on what it promised to become. With score gaps of less than one per cent that is no detail but potentially the difference between winning and losing. The judgment also shows how technical standards — here the Superior Health Council’s recommendations on clean and soiled zones — can be elevated to essential requirements through a specification clause: the hospital had itself made compliance the touchstone of the laundry criterion and could then hardly dismiss the established defects as non-binding suggestions. In passing, the judgment reads as a lesson in decision-making hygiene: an undated award document signed ‘by order’, notified as the decision while the real decision was taken elsewhere, forced the Council to suspend both decisions together.
The lesson
For contracting authorities: for every shortcoming you identify, ask whether it makes the bid insufficient or merely less good. If the former, draw the regularity conclusion — but never award on condition that the winner adjusts its offer afterwards, for by doing so you admit you did not assess the bid as submitted. Use the clarification mechanism of article 115, sixth paragraph, before the evaluation, not as a repair tool after it. And make sure your award decision is dated, taken by the competent body and correctly notified: formal defects in the decision-making only make suspension easier. For bidders: read the evaluation of the winner as attentively as your own. Conditions, improvement obligations or deadlines attached to the award are a powerful weapon — they prove, in the authority’s own words, that the winning offer did not suffice. And offer what you can deliver on day one: promised future compliance is not compliance.
Ask yourself
As a contracting authority, do you assess bids as submitted, or do phrases like ‘must be adjusted upon award’ creep into your award report — and do you realise that every ‘must’ there is a confession? Have you consistently treated standards referenced in your specifications (such as the Superior Health Council’s recommendations) as what they are: requirements the bid must meet now? Is your decision-making chain in order — dated, by the competent body, with the right decision notified? And as a losing bidder: have you combed the winner’s evaluation for conditions and improvement deadlines that betray that its offer fell short?
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 →