Two fee percentages do not make two lots: J2F Sport fails against Waregem in the athletics-track case
In the open tender for the designer of Waregem's new athletics track, J2F Sport read the two requested fee percentages as two separate contracts of which it had to win at least one, and challenged the selection of winner Van Wassenhove Architecten over a missing VCA certificate; the Council of State saw, prima facie, one single contract, accepted the equivalence of the safety certificates produced and the after-the-fact regularisation of a certificate referenced in the tender, and rejected the urgency application.
What happened?
In July 2012 the city of Waregem launched an open tender for the appointment of a designer for an athletics track in water-permeable synthetic material on the extension of its sports stadium — IAAF-, KBAB- and VAL-compliant, including health-and-safety coordination for design and execution (specifications no. 2012/081, estimated at 60,000 euros excluding VAT). Nine tenders came in. The evaluation report of 25 September 2012 ranked Van Wassenhove Architecten first with a fee of 3.84% plus 0.14% for safety coordination (39,800 euros), just ahead of J2F Sport with 3.50% and 0.50% (40,000 euros). On 11 October 2012 the college awarded to the lowest regular bidder. J2F went to the Council of State under extreme urgency with two pleas. One: the tender form asked for two separate prices — hence two contracts or lots, and for the design part J2F was cheapest at 3.50%. The Council dismissed this: the specifications expressly contemplate a single contract, and the two fee percentages matter only for when each part falls due; the alleged contrary statements by the city's contact person were not proven. Two: the specifications required a VCA certificate, and the evaluation report itself noted that 'no design office holds a VCA certificate', after which the city accepted certificates of supplementary level-B training for safety coordinators — while J2F was the only bidder to enclose two genuine VCA certificates (basic safety and operational management). The Council found this plea not serious either: J2F did not disprove that company-level VCA certificates exist — a statement from the certificate issuer would have sufficed — nor did it show that the level-B certificate was not equivalent. That the winner filed its certificate (issued by Syntra West in 2003 and referenced in its tender) only upon the city's request could not be held against the city. The application was rejected; J2F bears the costs of 175 euros.
Why does this matter?
The judgment bundles three lessons that recur in local services procurement. First: the structure of the tender form does not define the contract. Whoever infers two lots from two requested price components reads the specifications as he wishes to read them; only an express division into lots counts. Oral confirmations from a contact person carry no weight against that — certainly when documented nowhere. Second: a selection requirement such as a VCA certificate is in practice read flexibly when no bidder meets it. The authority that then consistently accepts equivalent certificates commits, prima facie, no error; whoever contests this must concretely prove non-equivalence, with documents such as a statement from the certificate issuer. Third: selection documents referenced in but missing from the tender may be requested and added afterwards. Whoever counts on such a formal defect in a competitor will be disappointed. The common thread: in urgency proceedings the applicant bears the burden of proof for every element of its case, and assumptions — however plausible — do not suffice.
The lesson
For bidders: read the specifications as the Council reads them — one contract remains one contract, even if the form asks for several prices. Have promises or interpretations from a contact person confirmed in writing; otherwise they do not legally exist. And whoever raises a selection or regularity objection against the winner must complete the proof: show with documents that an accepted certificate is not equivalent, rather than relying on the literal text of the specifications. For authorities: set selection requirements the market can meet — a VCA requirement no design office satisfies forces improvisation in the evaluation report. Document that equivalence assessment carefully and apply it to everyone equally; that made the difference here between rejection and suspension. Certificates referenced in a tender may be requested afterwards — record that transparently in the report.
Ask yourself
Do you infer the structure of a contract from the tender form instead of from the express provisions on lots? Have you had oral statements from the authority confirmed in writing? Can you prove an alleged non-equivalence of certificates with documents, for instance a statement from the certificate issuer? Do you know that a certificate referenced in the tender may be requested and regularised afterwards? And as an authority: are your selection requirements feasible for the market you address, and do you treat equivalent evidence from all bidders in the same way?
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 →