Infrabel tests rail drills on wear rate and awards to Cembre: challenging a test method takes more than offering an alternative
Techno-Tools complained that the sole award criterion — ‘price, including cost of use’ — was nowhere elaborated in the contract documents and that the field tests had been run with the wrong lubricant, but the Council of State held that the negotiated procedure in the special sectors is particularly flexible, that Infrabel could reasonably measure the cost of use by the wear rate of the drills, and that pointing to another possible assessment factor does not establish manifest unreasonableness.
What happened?
Infrabel put out a framework agreement for the supply of light motorised equipment for track works (contract no. 49C/0000243992), for three years and divided into fourteen lots. Lot 6 concerned light rail drills — portable machines for boring holes in rails. The contract fell within the special sectors and was awarded through a negotiated procedure with publication. There was a single award criterion: price, including the cost of use. On 20 August 2013 Infrabel awarded lot 6 to Cembre. On 28 September 2013 Techno-Tools filed a single application seeking both annulment and suspension under extreme urgency. Its single plea — manifest error of assessment, infringement of article 60 of the Law of 24 December 1993 and of the principles of equal treatment and transparency — had three branches. In the first, it complained that the contract documents nowhere stated how the criterion ‘price including cost of use’ would be assessed: which costs of use would be taken into account, and by what method and criteria. It criticised the fact that the request for practical tests came only during the procedure, contested the costs Infrabel ultimately took into account, and argued that other elements should also have been evaluated. The lubricant particularly rankled: Infrabel had tested the machines with an emulsion oil (white water), whereas the specification imposed no specific type of lubricant. Had its machine been tested with full oil, its performance would have been better. In the second branch it drew the conclusion that Cembre had been favoured, since the tests used a lubricant suited to that product. In the third, it argued that the tests had been conducted ‘purely empirically’, so that nothing guaranteed their objectivity. The Council of State rejected all three branches. It started from the particular nature of the procedure: in the special sectors the negotiated procedure — in which the authority may discuss the terms of the contract with the bidders — is particularly flexible. Nothing therefore prevents the authority from asking bidders, in the course of negotiations, to submit a sample of the product offered, from checking it against the specification, from testing it with a view to the award criteria, and even — as happened here — from testing it in order to suggest improvements. On the first two branches the Council made a pointed observation: Techno-Tools did not criticise the award criterion itself, but the elements Infrabel had chosen to measure the cost of use. Infrabel had assessed that on the basis of the wear rate of the drills. That Techno-Tools proposed other elements — for instance, the time needed to bore a hole — does not show that Infrabel’s choice was manifestly unreasonable. As for the oil, the complaint could not stand either: the specification provided that the oils to be used were those used on Infrabel’s own equipment, a list of which could be obtained from the relevant Infrabel service. Techno-Tools did not show that it had informed itself on that point, nor did it explain why the use of full oil would affect the performance of its machine. The criticism of the test conditions — that it had not been informed of the test parameters before submitting its tender and had not been present at the tests — also failed. The administrative file showed that several test sessions had been organised, that Techno-Tools had been invited to take part in a number of demonstrations, and that it had even been given the opportunity to improve its product on the basis of the trials. The single plea was serious in none of its branches. The Council also maintained the confidentiality of a series of documents from the administrative file (nos. 12, 13, 25 to 28, 30 and 31 in their full versions, and 33 to 36), withheld from the parties at this stage. The application for suspension under extreme urgency was dismissed; the judgment was notified by fax and the costs were reserved, the annulment action still being pending.
Why does this matter?
This judgment marks how far a contracting authority’s latitude reaches in the special sectors once it negotiates. The negotiated procedure allows it to request samples as it goes, test them for compliance, assess them against the award criteria and even encourage a bidder to refine its product. Anyone objecting that the contract documents had not set out the assessment method in advance runs into the nature of the procedure itself: negotiating means not everything is fixed beforehand. The second point is a classic of marginal review, but rarely so cleanly illustrated. Infrabel chose wear rate as the yardstick for cost of use. Techno-Tools countered with drilling time per hole. Both are defensible — and that is precisely why the applicant loses. Showing that another criterion would also have made sense is no proof of manifest unreasonableness; for that you must show that the choice made could not reasonably have been made. It is one of the most underestimated thresholds in procurement litigation. Finally, the oil. Techno-Tools complained that the wrong lubricant had been used, but the specification referred to the oils Infrabel uses on its own equipment, with a list available on simple request. It had never asked for that list. That detail sums up the case: the information was there, the applicant had not fetched it, and its complaint that the tests disadvantaged it therefore remained an unsupported assertion — all the more so because it never explained what the difference in oil technically did to its machine.
The lesson
If you challenge a testing procedure, bring more than an alternative. The Council of State reviews marginally: that another yardstick — here drilling time rather than wear rate — was equally defensible is not enough. You must show that the choice made is manifestly unreasonable, and that takes technical substance: figures, measurements, an explanation of why the parameter used distorts the cost-of-use picture. Look also at what the specification refers you to: if it points to a list, a standard or a service from which information can be obtained, obtain it and keep the proof. Techno-Tools accused Infrabel of using the wrong lubricant but had never requested the list of oils used at Infrabel — and lost on that. Take part in every test session or demonstration offered, and document that participation; the administrative file is what counts when you later claim you were not involved. As an authority in the special sectors, this judgment confirms your room: in a negotiated procedure you may request and test samples, even where the precise test parameters were not set out in advance in the contract documents — provided you genuinely involve the bidders in the trials and the administrative file shows it.
Ask yourself
Are you criticising the award criterion itself, or only the elements the authority chose to measure it — and do you realise the latter confines you to marginal review? Can you show that the chosen parameter is manifestly unreasonable, or do you get no further than an alternative that would also have made sense? Have you requested the information the specification refers to (a list of permitted lubricants, a set of standards, a technical service) — and can you prove it? Do you explain technically why a different test parameter affects your performance, or do you merely assert that it would have been better? Did you take part in the demonstrations and tests offered? And as an authority in the special sectors: does your administrative file show that you involved all bidders in the test sessions?
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 →