Rumst adds 1.824 euros of transmission costs that Flow had already included — and the award to Belgacom is suspended
When comparing the bids for automatic number plate readers, the municipality of Rumst added 1.824 euros a year in data transmission costs to Flow’s price, even though Flow had expressly written below its bill of quantities that the communication cost was included in the maintenance contract; because the specifications provided no separate item for that cost and the municipality never asked for clarification, the Council of State suspended the award to Belgacom under extreme urgency.
What happened?
On 28 June 2012 the municipal council of Rumst decided to launch an open call for tenders for the supply, installation and commissioning of number plate readers as a control system for through freight traffic. The notice appeared in the Bulletin of Tenders on 2 July 2012. Specification 2012/004 set three award criteria: technical value (60 points), price (30 points) and the customer service and technical assistance offered under the maintenance contract (10 points). The bill of quantities contained five items — camera system, workstations, back office system, software and a twelve-month maintenance contract — but no separate item for the subscription for data transmission to the back office, whereas the technical provisions on page 13 did require bidders to state ‘how and at what price’ that transmission would take place and to offer a transmission subscription ‘included in the price’. On 31 August 2012 five bids were opened: Flow 111,823.54 euros, Sait Zenitel 139,297.12 euros, Belgacom 148,055.30 euros, THV Verkeersmonitoring 303,718.12 euros and Spie Belgium 332,011.76 euros. In assessing the price criterion the designer simulated the total cost over seven years — the expected service life, two years of warranty plus five years of maintenance. Transmission costs were added for every bidder except the successful one; for Flow, 1,824 euros a year. The municipality justified this by saying that only Belgacom offered its own licence-free wireless network in its bid, so that no subscription cost arose there. Flow had nonetheless expressly stated in its bid that it opted for an ADSL connection with Belgacom of the Office & Go Maxi type, and had noted below its bill of quantities: ‘Item No. 5: to avoid misunderstandings, the price given is the unit price for the maintenance of one of the six measuring posts for a period of 12 months. The communication cost is included in this price’. In the award report of 5 December 2012 Flow still scored the maximum 30 points on price against 29.67 for Belgacom, but in the final ranking Belgacom won by 88.57 to 87.10 — a gap of 1.47 points. On 11 December 2012 the college approved the award report and awarded the contract to Belgacom for 148,055.30 euros excluding VAT, plus the ‘white list’ option of 856.80 euros, together 148,921.09 euros excluding or 180,183.63 euros including VAT. Flow was informed by registered letter of 13 December 2012 and applied on 28 December 2012 for suspension under extreme urgency. The Council of State held that the plea alleging breach of article 16 of the public procurement act was serious. Because the specifications contained no separate item for transmission costs and did not say under which item they belonged, the pricing in the bids appeared at first sight insufficiently transparent to build a seven-year simulation upon. The municipality could not simply infer from Flow’s bid that the telecom subscription was not included without first requesting clarification or a price justification — all the more so since Flow had expressly stated the contrary below its bill of quantities. At the hearing the municipality itself admitted that the bid did not unambiguously show whether the transmission price sat in the one-off cost or in the annual maintenance; in doing so it conceded that it lacked the data for a sound price comparison, let alone for increasing Flow’s bid price itself. Since the allocation of points was affected through the rule of three and it was not established that a correct calculation would leave the final ranking untouched, the Council ordered the suspension of the award decision of 11 December 2012.
Why does this matter?
This judgment touches something that goes wrong constantly in practice: the authority that, in order to make bids ‘comparable’, adds amounts to a bid price itself. The Council does not deny that an authority enjoys wide discretion in fixing its assessment method — that is expressly confirmed. But that discretion stops where it begins to alter a bidder’s bid. Adding a cost that the bidder says it has already priced in rewrites that bid and distorts the very comparison it was meant to protect. The cause moreover lay with the authority itself: the specifications asked for a price for data transmission and required the subscription to be included in the price, yet provided no item for it in the bill of quantities and did not say where bidders should place that cost. Specifications that are silent on that point cannot afterwards serve to treat one bidder more strictly than another. Finally, the judgment shows how fine the margins are: Flow lost by 1.47 points out of 100, while its bid was 36,000 euros lower than the winner’s. Anyone drafting an award report with seven-year simulations should know that every euro added can tip the final ranking — and with it the legality of the whole decision.
The lesson
If you bid and your price covers something the specifications do not provide as a separate item, say so in black and white in the bid itself, preferably at the relevant item of the bill of quantities. Flow did exactly that, and that single sentence carried its whole case. If you later find that the authority has charged you costs you had already included, the core of your plea is not that you disagree with the assessment method, but that the authority altered your bid without asking you anything. As an authority, provide an explicit item for recurring costs such as subscriptions, or state unambiguously under which item they belong. If you still want a total-cost simulation over the service life, first ask in writing for clarification from bidders whose pricing is unclear. Adding amounts yourself is the shortest route to a suspension.
Ask yourself
Does your bid expressly state which recurring costs — subscriptions, licences, communications — are included in which item, even where the specifications provide no separate line for them? As an authority: does your bill of quantities contain an item for every cost you want to include in the price comparison, and if not, have you written in the specifications where that cost belongs? Do you request clarification or a price justification before adding amounts to a bid price yourself? And have you checked whether your correction can, through the rule of three, tip the final ranking — here a gap of 1.47 points was enough to put everything at stake?
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 →