Three case sizes, three prices, one ‘tender’: SHS Computer makes its own bid for the ULg’s PCs incomparable
In the middle of the summer recess the Council of State rejected SHS Computer’s extreme-urgency application against the award of the University of Liège’s PC supply contract to Priminfo: a bidder who submits separate prices for three computer-case formats in a single document is in reality submitting several base tenders, makes comparison with the other bidders impossible and cannot hide behind the rules on free variants — and without a regular tender there is no interest in challenging the award.
What happened?
The University of Liège tendered a multi-year open-order supply contract for the delivery and maintenance of assembled office PCs for all its departments, for three years from 1 July 2012, with European publication. The specifications were clear on two points: clause 15.1 obliged bidders ‘on pain of absolute nullity’ to quote a price for the base tender and all mandatory options, and clause 5 offered a choice among ‘Ultra Small’, ‘Desktop’ or ‘Tower’ cases, to be described by the bidder. SHS Computer formally submitted one document, but containing one offer for the first case format and another for the remaining two — three priced proposals, leaving the university to choose. On 4 July 2012 the ULg awarded the contract to Priminfo; on 10 July SHS Computer learned that its tender had been rejected both on qualitative selection grounds and as irregular. A fortnight later the case was before the vacation chamber. The Council first recalled the order of things: a contract can only be awarded to a regular tender, so the regularity of the applicant’s own tender must be established before it has any interest in criticising the rest. The first plea — about a slip in the administrative report (three years in the specifications, an estimate ‘for the 4 years of the contract’) and the vague award criterion ‘multi-core processor of recent technology’ — concerned the comparison of regular tenders and was therefore beside the point. The third plea failed on the merits: by submitting, within one document, one base offer for one case format and a second for the other two, nobody could know in advance in what proportion the three types would be ordered, making an effective comparison with the other bidders impossible. None of the proposals could pass as a permitted free variant, which the specifications defined as ‘innovative or higher-performing solutions or more economical solutions maintaining the level of performance’. No serious plea on regularity, hence no examination of the second plea on qualitative selection: the application was rejected, in line with the auditor’s opinion. Priminfo’s intervention was admitted and costs were reserved.
Why does this matter?
The judgment illustrates two mechanisms that apply equally under the current legislation. First, the interest rule that acts as a filter in procurement litigation: whoever challenges an award must first get past the regularity of its own tender. The Council therefore never examined the — in itself intriguing — criticism of the vague award criterion or the contradictory duration in the documents: those pleas concern the comparison of regular tenders and do not help an irregular bidder. Second, the difference between choices in the specifications and choices in the tender. That the specifications allowed three case formats did not mean a bidder could put three priced proposals side by side and leave the choice to the authority. A tender must be a single commitment capable of comparison; whoever turns it into a menu deprives the authority of any fixed point of comparison — especially in an open-order contract, where the ratio between the types ordered is by definition unknown. The escape route via free variants was cut off by the specifications’ own definition. The judgment finally shows how fast extreme-urgency litigation works even in August: award on 4 July, notification on 10 July, application on 24 July, hearing on 7 August and judgment on 13 August — the vacation chamber exists for a reason.
The lesson
For bidders: never let the contracting authority choose from within your tender. If the specifications offer technical options — case formats, methods, materials — you choose, and you commit to one base tender at one price; several priced proposals side by side amount to several base tenders and make your submission irregular. If you want to offer alternatives, first check whether the specifications allow variants and whether your proposal fits their definition. And remember when litigating: pleas about award criteria or estimate errors get you nowhere as long as your own tender is not regular. For authorities: this judgment supports declaring composite ‘pick-one’ tenders irregular, especially in open-order contracts — but define options and variants sharply in the specifications, so the line between a permitted variant and a second base tender leaves no room for argument.
Ask yourself
Does your tender contain exactly one commitment with one price for the base offer, or are you in fact presenting several proposals for the authority to choose from? Have you checked whether the alternatives you wish to offer fall within the specifications’ definition of permitted variants? Do you realise that an irregular tender deprives you of the interest needed to challenge the award or the award criteria? And as an authority: do your specifications define variants clearly enough to reject a tender containing several priced base proposals with sound reasons?
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 →