One word in the price inventory — ‘always’ — costs Lammertyn.net the MIWA residual-waste contract
MIWA rejected Lammertyn.net’s tender for residual waste because the ratio between the collection-point component and the total price did not stay between 50 % and 70 % in every municipality; Lammertyn.net argued the ratio had to be assessed globally, but the Council of State read the word ‘always’ in the inventory — together with the fact that the specification asked only for per-municipality totals and no global total — as imposing the requirement municipality by municipality, and added that even with a regular tender Lammertyn.net would still have ranked second behind Smetco.
What happened?
MIWA, the intermunicipal waste association of the Midden-Waasland, launched an open call for tenders for the alternating collection of residual and organic household and craft waste in its operating area — the municipalities of Sint-Gillis-Waas, Sint-Niklaas, Stekene, Temse and Waasmunster. The contract was published in the Belgian Bulletin of Tenders of 24 May 2013 and in the Supplement to the Official Journal of the European Union of 28 May 2013, and was governed by special specification OPH 001/2013. The award criteria were the price of the service (60 points), the quality of the resources deployed (15 points), the quality of the proposed services (20 points) and the completeness and care of the tender (5 points). The heart of the case lay in the price structure. Article 5.1 split the price into two parts: a fixed component calculated on the number of collection points (the population divided by 2.5) and a variable component calculated on the tonnage collected. A band applied: ‘the price component based on the number of collection points shall amount to a minimum of 50 % and a maximum of 70 % of the total annual fee for door-to-door collection’. The specification illustrated this with a worked example in which a tender falling outside that band was expressly labelled ‘invalid’. The mandatory price inventory (annex B) was built up municipality by municipality: for each of the five it listed the number of collection points and the estimated tonnage (Sint-Gillis-Waas 7,550 points and 2,340 tonnes; Sint-Niklaas 29,153 and 11,911; Stekene 6,995 and 2,303; Temse 11,556 and 4,275; Waasmunster 4,223 and 1,305), each with columns for the unit price, the subtotal (1) based on collection points, the subtotal (2) based on tonnage and the annual total (1+2). Beneath it stood a single line: ‘The ratio between (1) and (1+2) must always be less than 70 % but greater than 50 %.’ At the opening on 17 July 2013 three tenders came in, including those of Lammertyn.net and Smetco. The award report of 3 September 2013 found that Lammertyn.net had not respected the 50-70 % ratio, declared its tender for the residual-waste part invalid and did not assess it further — for the organic-waste part it remained in contention, its prices there not clashing with the ratio. On 19 September 2013 the board awarded the residual waste to Smetco; Lammertyn.net was informed on 20 September by email and registered letter and sought suspension under extreme urgency on 4 October 2013. Its single plea — infringement of article 16 of the Law of 24 December 1993 and of articles 110 and 115 of the Royal Decree of 8 January 1996 — came down to one question of interpretation. According to Lammertyn.net this was a single contract with no division into lots per municipality; the specification spoke of one price component, not of components per municipality, and nowhere stated that the ratio applied as a sub-requirement per municipality. On the contrary, the ‘price of the service’ criterion was to be assessed on the total number of inhabitants served as set out in annex A, in line with existing practice, where invoicing was never split by municipality. Viewed globally, its tender complied: for 59,477 collection points it offered 650,668.68 euros and for 22,134 tonnes of residual waste 292,390.14 euros, together just over 943,000 euros a year — a ratio of just under 69 %, comfortably inside the band. The Council of State chose the other reading, and did so on the text. From the ordinary meaning of the word ‘always’, and from the fact that the inventory asked for a total (1) and a total (1+2) per municipality, it inferred that the ratio must hold always and constantly — that is, per municipality. Decisive was what the inventory did not ask for: nowhere was a total price (1) or (1+2) requested for all municipalities together. That the price criterion was calculated on the total tender price does not detract from this. Moreover, this reading best matched the purpose of the ratio as MIWA explained it at the hearing: securing a fixed share of the cost across the whole term against fluctuating residual-waste tonnage — for MIWA itself and, derivatively, for the participating municipalities contributing to those costs on the same principles. MIWA was therefore entitled to treat the tender as irregular. The Council added a second, self-standing ground: Lammertyn.net appeared to have no interest in its plea, since it emerged at the hearing that even had its tender not been declared irregular, it would still have ranked second, behind Smetco. The plea was not serious; the action was dismissed and Lammertyn.net was ordered to pay costs of 175 euros.
Why does this matter?
This judgment is about something mundane and therefore dangerous: how you read a price inventory. Nowhere had MIWA written in so many words that the 50-70 % ratio applied per municipality. Yet it prevails, on the strength of three textual signals that together prove decisive: the word ‘always’, the per-municipality structure of the inventory, and — perhaps sharpest of all — the absence of any requested global total. The lesson is that the structure of the tender form counts as an element of interpretation, not just the running text of the specification. A bidder who sets the inventory aside and checks the band only globally risks having a differentiated pricing strategy — cheap in one municipality, expensive in another — struck down as irregular without the tender ever being assessed on the merits. For contracting authorities there is a mirror-image lesson. MIWA won here, but could have spared itself the trouble with one added sentence: ‘this ratio applies per municipality’. That the Council reached the same result through ‘always’ and the column structure is no licence to remain vague; it is fortunate that the text offered just enough purchase, and writing it out explicitly saves you a procedure. Finally, the judgment recalls a sober but often forgotten threshold: even a well-founded plea gets you nowhere without an interest. Lammertyn.net would have ranked second behind Smetco in any event — a finding that emerged at the hearing and that alone rendered the plea inadmissible.
The lesson
With a split price structure, check every band at the level at which the inventory makes you calculate, not at the level that suits you best. If the inventory asks for totals per municipality, per lot or per site, and asks for no global total, assume the imposed ratio must be respected at that level — certainly where words such as ‘always’ appear. If in doubt, put an explicit question during the clarification round; explaining afterwards that you read the specification differently comes too late. Before starting proceedings, also check whether you stand to gain anything: if you would not have ranked first even with a regular tender, you lack an interest and your plea fails on that ground alone. As a contracting authority, state in so many words at which level your ratios, minima and maxima apply — per lot, per municipality or globally — and repeat it in the inventory itself. And keep the rationale documentable: MIWA was able to explain at the hearing why a fixed price component per municipality made sense (a stable cost base against fluctuating tonnage, including for the participating municipalities), and that explanation reinforced its reading of the specification.
Ask yourself
At what level does the inventory ask you to calculate — per municipality, per lot, or globally? Does the specification anywhere ask for a total across all municipalities, or only for subtotals? What do you do with words like ‘always’ attached to an imposed ratio: read them as emphasis, or as a per-line requirement? Have you checked your pricing at each separate level, or only on the aggregate total? Would you actually have ranked first had your tender been declared regular — and if not, what interest do you have in your plea? And as an authority: is it stated in black and white at what level your ratio applies, and can you explain why that limit exists?
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 →