Five years of maintenance required in the tender, but only one year in the price formula — not contradictory if the end user signs the maintenance contracts
The Council of State rejects Presta Services' challenge and rules that the contracting authority could include only one year of maintenance in the price formula, even though the tender required bidders to offer at least five years — because the maintenance contracts are signed by sports clubs (the end users), not by the authority itself.
What happened?
The Walloon Region launched a tender on 19 May 2014 for 600 automated external defibrillators (AEDs), inside cabinets and user training, to be installed in sports clubs across Wallonia and the French Community. On 5 November 2014 the contracting authority decided not to award and to relaunch the procedure by negotiated procedure without publication. After negotiations the contract was awarded to Presta Services on 4 June 2015. Defibrion then flagged a material calculation error: 834.90 € × 600 + 151.25 € × 600 annual maintenance = 591,690 € rather than the 652,190 € figure used. The authority withdrew its first award and on 17 June 2015 awarded the contract to Defibrion. Presta filed an emergency suspension. Its main claim: the price criterion (60 points) only counted one year of maintenance, while the tender required bidders to offer five years. The Council ruled that the maintenance contracts are signed (or not) by sports clubs — not by the authority — and that the future cost is therefore indeterminate. The authority cannot be required to include costs it will not bear. The suspension was rejected.
Why does this matter?
Tenders with mandatory 'options' (maintenance, warranty, user-triggered options) contain a treacherous gap between 'what you must offer' and 'what enters the price comparison'. Bidders who model their offer assuming long-term maintenance will dominate the score may misread the formula. The opposite also holds: if the formula does count the full duration, know what that means for your margins. Read the price formula and the 'who signs the underlying contract' element before finalising your pricing.
The lesson
Read the price criterion word for word and identify two things: (1) what volume and duration enter the formula, and (2) who signs the underlying contract — the authority or the end user? A mandatory 'offer for 5 years' in the tender does not automatically mean 5 years enter the price comparison. If you discover afterwards that only 1 year counts, that is not by itself a valid suspension ground unless you can point to a tender clause or legal rule that required otherwise.
Ask yourself
How many years of maintenance actually enter the price formula of the tender you are pricing now? One year, five years, the framework duration? Does the amount being scored match the authority's actual spend, or does a fixed option component end up being signed by third parties?
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 →