A 'se réserve le droit' clause is a faculty, not an obligation: the SRWT was not required to mistrust the guaranteed 81,000 km
The Council of State dismisses Michelin's annulment challenge against the awarding of lot 1 of the TEC bus tyre framework to Bridgestone, because the specifications clause 'la SRWT se réserve le droit de corriger ou écarter toute soumission faisant état d'un kilométrage garanti anormal' is a faculty and not an obligation, and Bridgestone's guaranteed 81,000 km — backed by the previous model's average of 79,132 km on the TEC network — is not manifestly unreasonable.
What happened?
The Walloon Regional Transport Company (SRWT) tendered in July 2013 the exclusive supply of tyres for TEC buses, four years, negotiated procedure with publication, special sectors. Five lots, about 11,260 tyres in total. Lot 1, by far the largest, covered 10,000 tyres of type 275/70R22,5 for 'Urban All Positions M+S' profiles. Five award criteria totalling 100 points; the cost per kilometre criterion alone weighed 60 points and rested on the guaranteed kilometre figure K1 in a formula. The specifications contained a safety clause: 'Subject to express and convincing demonstration by the bidder, the SRWT reserves the right, to the extent possible, to correct or discard any submission stating an abnormal guaranteed kilometre figure, compared with the average kilometres previously obtained on the TEC network with tyres of the same dimensions and comparable tread height.' Five bidders. On 11 December 2013 lot 1 was awarded to Bridgestone Belux for 2.98 million euros excluding VAT. Scores on cost per kilometre: Bridgestone 60/60, Michelin 59.96, Continental 55.78, Dunlop 46.89, Goodyear 45.79, Yokohama variants 41.47 and 25.55. Michelin challenged, focusing on Bridgestone's 81,000 km guarantee for a new model (a 28% improvement over the predecessor). The Council goes through every point. The predecessor's actual average on the TEC fleet was 79,132 km — Michelin did not dispute this figure in its last memorial; the 81,000 km guarantee sits below Michelin's own guarantee and in the same range as three other bidders. Not manifestly unreasonable. The 'same figure for five fleets' argument: not enough to suggest unreality. The De Lijn reference: not shown to be a recent comparable contract. On the safety clause: 'reserves the right' is a faculty, not an obligation; the authority may correct or discard abnormal guarantees but is not required to when it considers them normal. The ground based on article 106 of the 16 July 2012 Decree was inadmissible because that article concerns the negotiated procedure without publication, while this contract used negotiated procedure with publication. Michelin's request to lift confidentiality of three documents was rejected: the relevant information had been transmitted through the procedural memorials and the auditor's report. Appeal dismissed; 500 euros costs to Michelin.
Why does this matter?
For bidders working with technical evaluation formulas — where a single parameter (kilometre, lifespan, energy efficiency, throughput) determines fractions of points — this case is a two-sided warning. On the attack side: a contracting authority is not obliged to automatically mistrust a 'remarkably high' figure when it does not drastically deviate from earlier realisations or from the other bidders' guarantees. The 28% improvement sounded dramatic but was realistic in context (79,132 km average for the predecessor). Strategically: 'se réserve le droit' clauses in specifications are a familiar device suggesting that extreme figures will be verified. This case confirms what experienced bid managers already knew: such clauses impose no obligation. For contracting authorities, the lesson runs the other way: if you actually want to filter out optimistic projections, write 'the SRWT VERIFIES and discards' — not 'reserves the right'. The linguistic difference between faculty and obligation is procedurally decisive.
The lesson
Before going to the Council with a ground saying 'the authority should have verified', check the wording of the clause you rely on. 'Reserves the right', 'may correct', 'may exclude' — those are faculties. For a successful ground you need something mandatory: 'verifies', 'necessarily applies', 'excludes'. And second: an improved figure is not automatically an unrealistic figure — compare with realisations and with other bidders' guarantees.
Ask yourself
Are you questioning whether the winning offer states an impossibly high performance figure? Find two reference points before lodging your appeal: what is the actual average of that bidder's previous model on comparable contracts, and where do the other bidders sit in their guarantees? If your figure is higher than the winner's, or if the other guarantees are in the same range, the 'manifestly unreasonable' ground is weak from the start.
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 →