Handing out minus marks is not a regularity check: the nursing-home beds of Hechtel-Eksel suspended
Vitas assessed the conformity of the offered nursing-home beds with the specifications solely through the award criterion ‘technical and functional quality', used a never-announced legend to give minus marks to bids that ‘do not meet the specifications' yet excluded none of them — for the Council of State that was prima facie no careful regularity check, and since deviations from technical specifications in principle entail substantial irregularity, it suspended the award to Distrac.
What happened?
Vitas, the intermunicipal association for senior care of Bocholt, Hechtel-Eksel, Meeuwen-Gruitrode and Peer, sought a supplier for sub-lot 3.1 — nursing-home beds and bedside tables, estimated at 214,110 euros excluding VAT — for its new care home with 90 units in Hechtel-Eksel. The specifications listed four award criteria — technical and functional quality (35 points), aesthetic quality (30), price (25) and guarantees and continued availability (10) — and part II contained detailed technical requirements for the standard bed. Four bidders submitted offers. The award report of 21 August 2012, drawn up by architects AR-TE, tested the bids directly against the award criteria after the administrative and arithmetical checks, using a legend announced nowhere in the specifications: a ‘+' for ‘meets the specifications', a ‘-' for ‘does not'. Bids and variants received a ‘-' on various points, yet none was excluded as irregular; everything simply went into the summary score table. Distrac achieved the highest score with 74.7/100 and was awarded the contract on 4 September 2012 for 173,485.82 euros excluding VAT, with the statement that its bid was ‘complete and conform'. Wissner-Bosserhoff, whose bed in its view was the only one fully meeting the technical specifications — which made it the most expensive — challenged the award: no genuine regularity check had ever been carried out, and the chosen bed deviated from the specifications on several points. The Council of State agreed prima facie. Deviations from technical specifications in principle entail substantial irregularity; the specifications nowhere distinguished between minimum requirements and wishes, and the reference to ‘minimum technical provisions' indicated precisely that these were essential requirements. That technical quality was also an award criterion changed nothing: such an approach is acceptable at most where the authority actually examines regularity and draws conclusions from it — handing out minus marks while letting everyone compete is the opposite. Even if the deviations were merely relative irregularities, no reasoning explained why they were overlooked. The Council also found the equality plea plausible: whoever had known that deviations were tolerated could have submitted a cheaper bid. Two objections by Vitas — Wissner-Bosserhoff lost on the user test anyway, and its own bed did not fully comply either — were dismissed: the plea concerned not the scores but the missing regularity check, and its bid had never been declared irregular. The award to Distrac was suspended under extreme urgency.
Why does this matter?
The judgment draws a sharp line between two things contracting authorities like to blur: the regularity check and the assessment of the award criteria. Conformity with the technical requirements is not a matter of more or fewer points but a prior threshold: a bid deviating from technical specifications is in principle substantially irregular and must be excluded, unless the authority explains why the irregularity is merely relative and may be overlooked. Whoever skips that step and dissolves conformity into a score compares incomparable bids and penalises precisely the bidder who took the specifications seriously — for that bidder offers the more expensive, compliant product. The judgment also confirms two side lessons. First: an assessment method not announced in the specifications — like the legend with pluses and minuses — cannot be held against bidders, who could not take it into account when drafting their offers. Second: allowing free variants changes nothing about the requirement that the basic bid meet the technical requirements, and variants too must satisfy the minimum conditions under article 16 of the law of 24 December 1993. For the care sector, where specifications for beds, hoists and furniture are often highly detailed, this judgment is a warning of some magnitude.
The lesson
For contracting authorities: examine the regularity of the bids before turning to the award criteria, and draw conclusions — exclude substantially irregular bids, or state expressly why a deviation is merely relative and why you overlook it. If you want room for equivalent alternatives, write it into the specifications: make the distinction between minimum requirements and wishes explicit, and announce your assessment method. For bidders: if you stick strictly to the technical specifications and lose on price, check in the award report whether the cheaper winner was compliant — the contrast between your compliant, more expensive bid and a deviating winner is exactly the lever with which Wissner-Bosserhoff obtained the suspension here. And do not count on the objection that your own bid was imperfect too: as long as it has not been declared irregular, you keep your interest.
Ask yourself
As a contracting authority, do you carry out a separate, documented regularity check before testing against the award criteria, and do you draw conclusions from it? Is your assessment method — legends, scoring scales, trial set-ups — fully set out in the specifications? Do you know that a bid deviating from technical specifications is in principle substantially irregular, and that overlooking a relative irregularity requires express reasoning? And as a bidder: do you request the award report to verify the winning bid's conformity, and do you realise that a strictly compliant but more expensive bid can give you a strong litigation position?
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 →