You can't count the same 8 staff for two different personnel profiles — or you lose your selection
The Council of State dismisses K. Verstraete & Zoon's annulment appeal against the €6.5 million road-lighting contract awarded to nv VSE because Verstraete used the same 8 staff for both 'defects/breakdowns' and 'new construction', while the specifications required 29 separate profiles for lot 5.
What happened?
In March 2013 the Roads and Traffic Agency launched an open tender for the supply, installation, replacement and maintenance of road lighting, internally illuminated signage and power cabinets along Flemish highways and regional roads. Split into 5 lots — one per province. Lot 5 (West Flanders) estimated at €6,572,027 incl. VAT per year. The specs contained a detailed minimum-staff table per lot: for lot 5 'minimum 3 supervisors, 8 maintenance, 8 for defects, 10 new construction, and 2 support' — 29 different profiles in total. Verstraete bid but wasn't selected. Four reasons: incomplete qualification documentation; partly relevant references missing some certificates; unclear exclusive equipment commitment (2 lifts, 1 lab vehicle, 3 crash attenuators); and — decisively — Verstraete listed the same 8 staff for 'defects/breakdowns' and 'new construction', plus 2 extra for the latter. Only 21 distinct profiles instead of 29. The contract went to nv VSE for €6,509,375 incl. VAT. Verstraete filed emergency suspension (rejected 27 March 2014, judgment 226,899), then continued to annulment. Verstraete's argument: the spec's 'sum by profile' rule applied only to multi-lot bidders; the same staff can in principle serve multiple profiles; the authority could have asked for extra info under art. 20 §3 KB 8 January 1996. The Council disagrees. The table is unambiguous: per lot, the minimum count per profile must be available separately. The underlying logic: 'to ensure proper operation' at peak times, you need 8 people for defects AND 10 for new construction simultaneously available — not the same 8 for both. Verstraete's 'particular reading' would render the profile breakdown meaningless. As for art. 20 §3: it's a POSSIBILITY, not an obligation. Even if the authority had asked, it could only have allowed 'clarification or supplementation', not 'modification or regularisation' after opening. Moreover Verstraete asked NO questions about this selection criterion during the publication phase — confirming the criterion was clear. The equality argument also fails: the (confidential) file shows other selected bidders offered at least 29 separate profiles each. Appeal dismissed. €375 roll fee for Verstraete.
Why does this matter?
Larger maintenance and works contracts often include detailed staff tables in the specifications. Companies tend to deploy the same versatile staff across different profiles — that seems efficient. This judgment teaches: if the authority publishes a table splitting profiles by type of work, you MAY NOT count the same staff member multiple times. The rationale is operational: at peak times EVERYTHING must be executable simultaneously. Bid managers who are too lean on staff disclosure get knocked out at selection. Also: art. 20 §3 (now art. 47-48 KB Placement 2017) is no 'lifeboat' — the authority can't fix your selection gaps without breaching equality.
The lesson
If the specs contain a table with minimum staff per profile: count the profiles literally. List for each column at least the required number of separate names — even if in reality you have versatile people. 'Explaining' versatility to the authority doesn't work as post-opening regularisation — your offer must contain the right setup from day one.
Ask yourself
Before submitting: count the total separate names on your staff list per lot. Does it reach at least the sum of ALL required profiles in the table? If not, supplement BEFORE submission — after opening, regularisation is excluded.
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 →