Strict reference requirement in the call? Then 'OK' and 'who can do more can do less' aren't motivation
The Council of State suspends the award to KONE of the lift lot for the new Jules Bordet Institute, because KONE submitted as its technical-capacity reference the renovation of existing lifts at ZNA Middelheim hospital — while the call for tenders explicitly required a 'rigorously comparable' reference in the context of building a new hospital institution, and the administrative file contained no reasoned trace of why that deviation was acceptable.
What happened?
On 11 June 2015 the Belgian Official Journal of Tenders published, followed by the OJEU on 16 June 2015, a notice for Lot 08A of a larger works project: the construction of the new Jules Bordet Institute on the Anderlecht university campus. The lot covered six passenger lifts, eight bed lifts, five goods lifts (including one kitchen goods lift), two dumb waiters and a dock leveller. The procedure was an open call for tenders. The specifications required a class N1 / class 6 accreditation and laid down a single technical-capacity criterion: at least one recent reference (last five years before provisional acceptance) of 'rigorously comparable services in the context of the construction of a hospital institution' for at least EUR 600,000 excluding VAT for the lift lot alone, provisionally accepted and with qualification of the classified technical installations achieved. The reference had to be supported by a project description, three photographs, details on duration, amount, nature, people involved, project characteristics, competencies deployed and a certificate of good execution signed by the owner. On 2 September 2015 two offers were opened: - KONE BELGIUM: EUR 1,589,340.00 excl. VAT - SCHINDLER: EUR 1,613,100.00 excl. VAT KONE submitted as its only reference 'ZNA Middelheim Hospital – Antwerp'. On 9 October 2015 the contracting authority's project engineer asked KONE by email to complete that reference 'in conformity with the notice': project characteristics (type of materials installed), photographs. KONE replied on 14 October with a document mimicking the structure of the notice: the works were described as 'supply and installation of new lifts' (cables, pulleys, motors, control cabinets, cabins…), executed 'in an operational establishment' with a strict phasing plan. The accompanying execution certificate explicitly mentioned subcontractors for certain phases of the 'works replacing the existing lifts'. On 17 December 2015 the Bordet board, in item 8 of minutes no. 11, decided to select both bidders, declare both offers regular, and award the lot to KONE as the lowest regular offer. The Director General was instructed to notify the bidders. On 18 December 2015 SCHINDLER received a copy of the analysis report (dated 4 November 2015, author unknown) and an extract of the minutes. SCHINDLER filed an extreme-urgency action on 4 January 2016. At the hearing all parties admitted what the file already plainly showed: the reference submitted concerns no construction of a new hospital, but a replacement of thirteen lifts in an operational hospital. Bordet and KONE built their defence around the adage 'who can do more can do less': modernising lifts in a working hospital is technically harder than installing them in an empty building, and KONE had — according to itself — replaced 85% (and according to Bordet even 100%) of the parts. SCHINDLER countered that only 50% were really replaced and that the skeletons, counterweights and cabin frames had remained in place. KONE also pointed out that the Middelheim specifications referenced both the Royal Decree of 9 March 2003 and EN 81-1 (the standard for new lifts), evidencing in its view a 'complete replacement'. Chamber President Jacques Jaumotte did not rule on the substantive question whether a renovation can be equated with a new build. He tested something much more concrete: did the contracting authority visibly document in its file why it considered a renovation reference sufficient, given specification language so strict that it leaves the authority itself almost no margin of appreciation? The minutes of 17 December 2015 do no more than note the analysis report, adopt it and approve its conclusions. The analysis report itself contains a single sentence: 'Both bidders meet the technical capacity criterion', plus a table with 'sibylline' annotations. Nothing on why the 9 October question was asked, nothing on how the 14 October answer was assessed, nothing on the tension between 'rigorously comparable' in the notice and a renovation project in reality. Critically, it does not even appear that the board, when deciding, was aware of the question-and-answer exchange with KONE. The Council recalls that a contracting authority enjoys a wide margin of appreciation in qualitative selection, and that a bare 'OK' can suffice as motivation as long as no particular difficulty arises. But as soon as a difficulty surfaces — especially one that could only be cleared via an additional request for information, and especially where the relevance of the answer is not self-evident — the administrative file or the decision itself must carry the trace of the assessment. This applies 'a fortiori' when the specifications are drafted so strictly that they may have discouraged potential bidders and the authority has effectively written away its own margin of appreciation. The question is not whether KONE is technically capable of the works — it probably is the strongest lift company in Belgium. The question is whether KONE produced a reference that meets the strict requirements, and whether the authority duly motivated why it nonetheless selected what prima facie was not selectable. The trace of that motivation is entirely missing from this file, including in the formal motivation by reference. The first plea is held serious on grounds of a defect in both material and formal motivation. The Council suspends the award decision of 17 December 2015 with immediate enforceability. The second and third pleas are not examined — they could not, a priori, lead to a broader suspension. Confidentiality of file items 11 to 13 (SCHINDLER's offer, KONE's offer, the full minutes of 17 September 2015) is maintained.
Why does this matter?
This judgment is the textbook example of what happens when a contracting authority imposes strict selection requirements on itself and then handles those requirements loosely without documenting the looseness. For bid managers the message is twofold: read the call word by word, and if you notice that the winning bidder produced a reference that does not literally cover the required service (renovation instead of new build, comparable instead of identical, a different type of owner, lower amount, different standards), open the analysis report straight away and look for the reasoned weighing — or the lack of it. For contracting authorities: the stricter your criteria, the narrower your appreciation margin, and the heavier your duty to document the moment you nonetheless accept a deviation. An 'OK' in the matrix no longer suffices, and neither does a clever legal argument later in your court submission — the motivation must already be visible in tempore non suspecto in the administrative file.
The lesson
As a contracting authority: when you use words like 'rigorously comparable', 'identical', 'in the context of the construction of', you are nailing down specific characteristics the reference must have. Nevertheless accepting a reference that diverges on one of those characteristics? Then your board (or competent organ) must, at the moment of deciding, be aware of your doubt, your additional question to the bidder, the answer, and the reasoning why you find that answer sufficient. Put that reasoning literally in the analysis report. As a bid manager: when you notice that the winning reference prima facie does not meet the literal text of the specifications — compare the notice word by word with the submitted reference — request through the information duty the email exchange between the authority and the winner, and check whether that exchange and the assessment are visibly traceable in the administrative file. Missing trace? Strong motivation plea.
Ask yourself
Take the most recent notice in which you used strict language for your technical-capacity criterion ('rigorously comparable', 'identical', 'in the context of', minimum amount, type of owner). Then open your award decision and analysis report. Does the accepted winning reference diverge on one element from what you literally required? If yes: does your report set out concretely (a) what divergence you noted, (b) what additional information you requested, (c) the substance of the answer, and (d) why that answer covers the divergence? If not — you are exactly where the Jules Bordet Institute was. Vulnerable to a suspension on motivation grounds.
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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 →