The auditor who found himself wanting: in the Patria v. Mowag AIV case, the Council refuses to outsource the dispute to an expert
In the long-running annulment litigation over the award of 242 armoured infantry vehicles to Mowag, the Council of State refused to follow the auditor’s proposal — after he declared himself ‘in all conscience’ technically incompetent — to simply appoint an expert: the legal aspects of the pleas must first be examined plea by plea, because an expert with a blank-cheque mission would in essence transfer the Council’s jurisdiction to him.
What happened?
In early 2006 the Belgian State awarded the contract for the supply of 242 AIV armoured vehicles (specifications 4RP103) to the Swiss company Mowag; the Finnish competitor Patria lodged two annulment actions in March and May 2006 against the Council of Ministers’ decision of 27 January 2006 and the award decision of 22 March 2006. The case dragged on: by interlocutory judgment no. 212.712 of 26 April 2011 — five years later — the Council joined the two cases, dismissed part of the action and ordered the State to file the complete administrative file, under an arrangement whereby the documents marked confidential could be consulted only by the auditor’s office and the chamber. Then came a remarkable supplementary auditor’s report: the rapporteur declared ‘in all conscience’ that he was unable to assess the pleas because the discussion was ‘too technical in nature’ and he could get no further than ‘paraphrasing’ the parties’ positions — he proposed appointing an expert to inform the Council on the technical aspects, while preserving the confidentiality of documents 12 to 15. Only Patria agreed, though urging the Council to review the confidentiality classification ‘effectively’. The State and Mowag objected: the pleas should first be examined on their seriousness plea by plea, and a court expert should have no access to classified documents — Mowag even argued that ‘the international relations between the United States and the Belgian State would come under fire’. The Council steered a strict middle course. Expert evidence that is not absolutely necessary must be avoided for reasons of procedural economy — especially in a case with considerable interests at stake, disputed confidentiality, and where finding an independent expert acceptable to all parties had already proved difficult. Patria’s two pleas — on the relative nullity of Mowag’s tender for failure to meet I- and D-requirements (including the requirement that the eight-wheeled vehicle be ‘at least a pre-production vehicle, completed and proven by test and demonstration’) and on new award criteria in the ‘production maturity’ sub-criterion plus unequal treatment — did lend themselves to a prior legal examination. An expert with the proposed general mission, not narrowed down to technical questions, would ‘in essence transfer the Council’s jurisdiction to the expert’. But the Council would not conduct the examination itself either, bypassing the auditor’s office: that would disregard its prerogatives and deprive the parties of their right to a double examination. Hence: reopening of the proceedings and an order to the auditor’s office to examine the legal aspects of the pleas substantively, after weighing, with reasons and strand by strand, the need for expert assistance — with the pointer that the auditor may himself appoint an expert under article 20 of the Regent’s Decree, and that only if the legal examination cannot resolve the dispute may an expert with precisely formulated technical questions be proposed to the Council.
Why does this matter?
This interlocutory judgment, delivered in one of the largest Belgian defence files of its time, formulates principles that concern all procurement litigation. First, the hierarchy between judge and expert: however technical an award dispute may be — armoured vehicles, production maturity, test programmes — the legal questions come first, and an expert may only be deployed for precisely defined technical questions remaining after the legal examination is exhausted. An open mission to ‘inform us on the technical aspects’ amounts to a delegation of jurisdiction, which the Council refuses as a matter of principle. Second, procedural economy as a self-standing principle: avoidable expert evidence must be avoided, particularly where it would further delay proceedings — after six years — and sharpen the confidentiality tangle. Third, the institutional lesson on the auditor’s office: even when an auditor declares himself incompetent, the Council does not take over his task; the parties’ right to the double examination — first the auditor’s office, then the Council — prevails, and the auditor’s office simply gets its homework back, with the suggestion to engage an expert itself if need be. Finally, for the practice of defence and other sensitive contracts, the case shows how classified documents complicate litigation: the question of who may consult confidential tender data — parties, auditor’s office, chamber, expert — had already produced two interlocutory judgments and remained unresolved. Whoever litigates such a file must count in years.
The lesson
For bidders challenging a technically complex award: construct your pleas so that they can be decided legally — test the winner’s tender against the letter of the specification requirements and the prohibition of new award criteria, rather than asking the judge to redo the engineering. If you request an expert examination, formulate precise technical questions yourself; a general request for ‘guidance’ stands little chance. For authorities awarding sensitive contracts: settle the confidentiality of tenders and evaluation reports in advance and consistently, because any ambiguity becomes litigation of its own. And for both sides: do not count on a swift outcome in files like this — six years after the award not a single plea had been decided on the merits, while the vehicles had long been ordered. The annulment action then serves mainly as leverage for damages, not for the contract itself.
Ask yourself
Can your pleas be decided without the judge having to play engineer — and if not, have you formulated the technical questions precisely enough for an expert to answer them without taking over the dispute? Do you know that the Council refuses expert evidence as long as a legal examination of the pleas remains possible? As an authority, do you realise that the classification of documents as ‘confidential’ can be effectively reviewed in litigation and can stretch the dispute over years? And before embarking on such a marathon, have you weighed what an annulment could still concretely bring you after all those years?
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 →