Cameras for Leuven: in a negotiated procedure the classic regularity rules do not apply, and 256 presets may earn more points than 99
The Council of State rejected the extreme-urgency application of Securipoint and Nextel against the award of the extension of Leuven’s camera network to the Sait Zenitel - Jacops consortium: article 110 § 2 of the Royal Decree of 8 January 1996 on the regularity of tenders does not apply in a negotiated procedure, no rule obliges the authority to disclose its scoring method in advance, and a bidder who offers no more than the specifications require can claim no extra points — let alone contest the bonus points of a competitor with an objectively stronger offer.
What happened?
In late 2011 the city of Leuven sought a partner for a total concept: the extension of its camera surveillance network, its realisation and five years of maintenance, estimated at €960,000 including VAT, to be awarded through a negotiated procedure with publication. Five candidates applied, four were selected, three tendered: Belgacom, the Sait Zenitel - Jacops consortium and the Securipoint - Nextel consortium. The specifications divided 100 points over technical value and quality (55, including 15 for a day-and-night test set-up judged by a jury), price (30) and technical assistance (15). The evaluation report ranked Sait Zenitel first with 92.74 points (variant with LED backlight in the crisis room), ahead of Securipoint (90.40) and Belgacom (87.56); on 6 July 2012 the college of mayor and aldermen awarded accordingly. Securipoint and Nextel attacked the award with three pleas. The competence plea — the evaluation report named the police zone, an entity without legal personality, as contracting authority, and the notification was signed by a chief inspector — lacked factual basis: the file showed the college itself had awarded, and a defect in the notification does not affect the decision. The regularity plea — Sait Zenitel’s cameras allegedly deviated on several points (quad streaming, masking zones, optical zoom, storage capacity, LCD screens) from the technical requirements — ran into an obstacle of principle: article 110 § 2 does not apply to the negotiated procedure, and the applicants identified no specification clause sanctioning non-compliance with nullity, nor did they demonstrate concrete deviations from essential clauses. The reasons plea, in four strands, failed entirely. The assessment of ‘quality, completeness and functionalities’ could focus on the cameras, other aspects falling under separate (sub-)criteria, and annex A with its Excel sheets showed all technical aspects had been examined. No rule obliges an authority to specify or publish its points method in advance — the choice of assessment method belongs to its discretion, bounded by sound administration and its own specifications — and the specifications themselves fall outside the formal reasons act. The winner’s bonus points were justified: awarding extra points for non-required features that add relevant value is permissible, and each comparison went against the applicants — quad streaming was a requirement (hence no bonus), their 99 presets paled beside the winner’s 256, and the winner’s weaker privacy masking had indeed cost it points (24.5 instead of 25). The complaint about the test set-up’s material list failed because the points awarded showed the jury had received it — the winner moreover filed it as a confidential exhibit — while the applicants did not even produce their own list. The application was rejected in line with the auditor’s opinion; the applicants bore €350 in costs, the interveners €250.
Why does this matter?
The judgment’s most important sentence is barely one line long: the regularity regime of article 110 § 2 of the Royal Decree of 8 January 1996 ‘does not apply in a negotiated procedure’. A bidder seeking the rejection of a competitor’s tender for technical deviations in such a procedure cannot fall back on the automatic sanction apparatus of the open and restricted procedures, but must show that the specifications themselves framed a clause as essential or on pain of nullity — and that the deviation touches that clause. That difference in regime remains, under the flexible procedures of the Act of 17 June 2016, the crux of many a dispute today. The judgment also confirms two settled lines that together trace the assessor’s room for manoeuvre. One: the assessment method — how points are allocated within announced criteria — need not be disclosed in advance; the specifications have no individual scope and fall outside the formal reasons act. Two: the authority may award bonus points for qualities the specifications did not require but which add relevant value, as long as it remains consistent and substantiates its appreciation verifiably — which succeeded here thanks to the Excel annexes to the evaluation report. The case also illustrates a classic pitfall on the applicant’s side: whoever contests an award claiming its own strengths were under-rewarded must first check whether those strengths were mere specification requirements, and whether the competitor simply offered objectively more. And the competence discussion teaches that sloppy mentions in an evaluation report (the police zone as ‘contracting authority’) are harmless as long as the competent organ demonstrably took the decision itself.
The lesson
For bidders in a negotiated procedure: do not build your criticism of the winner’s tender on the classic regularity regime — it does not apply there. Search the specifications for clauses expressly framed as essential or on pain of nullity, and demonstrate concretely that the winner deviates from them. If you want to score with extras, first check what the specifications already require: a requirement is not an added value, and an added value smaller than the competitor’s does not amount to unequal treatment. Document your own exhibits meticulously in a test set-up — whoever builds a plea on the other side’s material list must at least be able to produce his own. For authorities: the negotiated procedure gives breathing space but no carte blanche — record your assessment verifiably (here the Excel sheets made the difference), assess each aspect under the right (sub-)criterion, and let the competent organ demonstrably take the award decision itself, however the notification is later signed.
Ask yourself
Do you know which procedural regime you are litigating under — and that the automatic nullity regime for irregular tenders does not apply in every procedure? Can you point to the specification clause that expressly sanctions the winner’s alleged deviation as essential or on pain of nullity? Are the ‘advantages’ for which you claim extra points genuinely more than what the specifications require, and do they exceed what the winner offered? And as an authority: could an outsider reconstruct from your evaluation report and its annexes how each point was awarded, and does the file show unambiguously which organ took the award decision?
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 →