The demonstration vehicle that did not match the bid: why VDL failed to suspend the award of 172 Brussels city buses to EvoBus
VDL Bus Roeselare challenged, under extreme urgency, the STIB/MIVB’s award to EvoBus of a framework agreement for standard and articulated city buses, but the Council of State found none of its pleas — on the reasoning, the award criteria, the final negotiations and a rejected discount — serious, and rejected the suspension, partly because VDL itself had offered a demonstration bus with a different engine and gearbox from the vehicle in its bid.
What happened?
Within a qualification system, the STIB/MIVB launched a negotiated procedure with prior call for competition for a five-year framework agreement for the study, construction, supply, commissioning and possible maintenance of buses for Brussels city transport. This was a supplies contract in the utilities sectors, split into two lots: standard diesel buses (lot 1) and articulated diesel buses (lot 2). Over the term the MIVB estimated some 150 standard and 225 articulated buses; a first order concerned, per the specifications, a tranche of 97 standard and 75 articulated vehicles. Bids were assessed on two award criteria of 100 points each — financial, commercial and organisational quality, and technical quality. After negotiations and a BAFO (best and final offer), the MIVB’s board decided on 9 October 2013 to withdraw its earlier award of 17 September 2013 and to award both lots to EvoBus Belgium: lot 1 for 93 standard buses of the Mercedes Citaro O530 model at 22,961,793 euros (excl. VAT) and lot 2 for 79 articulated buses of the Citaro O530G model at 26,711,401 euros (excl. VAT), with unit prices of 246,901 euros per standard bus and 338,119 euros per articulated bus, plus maintenance contracts for the on-board electronics (489,645 and 564,060 euros) and optional maintenance contracts (6,980,258 and 8,642,763 euros). VDL Bus Roeselare, which missed out on the contract, sought suspension under extreme urgency on 25 October 2013. It argued, among other things, that the award report was too summary and erroneously reasoned and used unannounced sub-criteria, that the weighting of the criteria had not been transparently communicated in advance contrary to article 55 of the utilities directive 2004/17 and article 110bis of the Royal Decree of 10 January 1996, that the MIVB had conducted the final negotiations only with EvoBus and had excluded VDL without a formal decision designating a preferred bidder, and that the MIVB had wrongly disregarded the discount VDL offered if both lots went to a single bidder. A key point concerned technical quality: the MIVB had awarded VDL only 50% of the points because its stated maintenance and dismantling times were unrealistically short — dismantling a transmission shaft in fifteen minutes it deemed unachievable, even for experienced MIVB mechanics, all the more so as 84 vehicles with the same concept were already running on the network. The Council of State found that this assessment had been preceded by a genuine examination, and that VDL undermined its own case: the demonstration vehicle it had provided was fitted with a Euro 5 DAF engine and a ZF gearbox, whereas its bid proposed a vehicle with a Euro 6 Fiat engine and a Voith gearbox, so the actual assembly times could not be verified — a consequence of VDL’s own making. It had, moreover, been alerted to the criticism during the negotiations (meeting of 30 April 2013) but produced no proof of the feasibility of its times in its BAFO. The complaint about the rejected discount also failed: the price reductions achieved in the BAFO — 418,000 euros for lot 1 and 474,000 euros for lot 2 — comfortably exceeded the initial discount. The Council found no plea serious and held that, absent a serious plea, there was no reason to examine the balance of interests. It rejected the suspension under extreme urgency and ordered VDL to pay the costs, set at 175 euros.
Why does this matter?
The case shows how high the threshold for suspension under extreme urgency is: without a single serious plea, the Council of State does not even reach the balance of interests, however large the financial stake. For bidders in technical supply contracts, the judgment also exposes a pitfall within their own control. A bidder who provides a demonstration vehicle differing on essential points — here the engine and the gearbox — from the vehicle offered in the bid deprives the authority of the ability to verify its own claims (such as maintenance and dismantling times), and cannot afterwards turn that impossibility against the authority as a reasoning defect. The judgment also confirms that an authority may critically assess abnormal-looking performance promises and, after a substantiated examination, sanction them with a lower score, especially where the bidder was alerted to the problem during negotiations and produced no counter-evidence. Finally, it shows that a plea about an unaccounted-for discount fails where the authority demonstrates that the price reduction obtained during negotiations — here 418,000 and 474,000 euros — already exceeded the advantage offered.
The lesson
Make sure that every sample or demonstration item you submit for assessment matches, on the assessed points, what you promise in your bid; if it differs materially — a different engine, a different gearbox — you frustrate the verification yourself and cannot later blame the authority. Support ambitious performance figures, such as short maintenance or dismantling times, with verifiable evidence, especially after the authority has voiced doubt during negotiations: a merely revised but unproven time will not do. If you want to suspend under extreme urgency, build at least one genuinely serious plea; without it, the Council does not even reach your interests. And do not count on a discount plea if the authority shows that the negotiated price reduction already exceeds your discount. For authorities, the judgment confirms that you may answer non-matching demonstration materials and unrealistic performance promises with a reasoned, examined lower score — provided you document the examination and gave the bidder a chance to respond.
Ask yourself
Does your demonstration vehicle or sample match, on all assessed points, the vehicle or product in your bid, or do you risk making the verification impossible yourself? Can you support ambitious maintenance or performance times with concrete, verifiable evidence, even after the authority queried them during negotiations? Do you have at least one genuinely serious plea before seeking suspension under extreme urgency, knowing that without one the Council will not reach the balance of interests? And does your discount plea still hold when the authority shows that the negotiated price reduction exceeds your discount? As an authority: have you sufficiently examined and documented your critical assessment of abnormal performance promises, and given the bidder the opportunity to respond?
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 →