Arguing the specs were written for a competitor? Then your own bid had better not contradict that claim
The Council of State rejects Vita Nova Supra's suspension of the award of a five-year AED supply contract to Half Blue: a bidder who claims the tender specs are tailored to one product cannot simultaneously state in its own offer that it weighed that very product and chose to bid a different one.
What happened?
On 22 March 2016 Brussels school group SGR8 (Flemish community education) publishes an open call for tenders for a five-year framework contract for the supply and maintenance of automated external defibrillators (AED units). The award criteria: price (50 points), qualitative criteria including ease of use, training and warranty (30 points), and annual maintenance (30 points). Three offers come in. Vita Nova Supra at 121,048.40 euros, Half Blue at 126,953.20, and Zoll International at 199,432.20. Vita Nova scores the maximum 50 points on price, but only 20 of 30 on quality (Half Blue gets 30) and 28.1 of 30 on annual maintenance. Final ranking: Half Blue 108.89 points, Vita Nova 98.1 — a 10.79-point gap. On 19 May 2016, the director general informs Vita Nova by letter that the contract goes to Half Blue. Vita Nova files an extreme-urgency suspension on 3 June 2016. First plea: the technical specs are tailored to one device — the Primedic Heartsafe AS, of which Half Blue is allegedly the sole distributor in Belgium. Specific challenges: the requirement that the device record background sound, that it offer a paediatric mode without electrode swap, and that it boot in a preset language with simple switching between the three national languages. Second plea: the award decision lacks proper motivation because the attached evaluation report was signed 'on behalf of' the prevention adviser. Chamber president Dierk Verbiest dismantles the first plea using Vita Nova's own offer, which states: 'As a brand-independent distributor of AED units we compared the technical specifications in the tender with various AED units, and the Primedic Heartsafe AS and the Cardiac Science Powerheart G5 appear to us to fit the requirements best. Based on our evaluation we consider the Powerheart G5 the best-performing device and offer it.' Vita Nova thus assessed the Primedic itself, against another device, and freely chose the latter. It fails to show it could not have offered the Primedic. At the hearing it pivots to: Half Blue is sole importer with privileged pricing, but no concrete figures are produced. The self-test sub-argument — Vita Nova's device tests the electrodes, Half Blue's does not — also fails: the tender does not specify that the self-test must extend to the electrodes. And even if the plea succeeded, it would not flip the ranking: the gap is 10.79 points and quality is just one component. The second plea also fails: the 19 May letter expressly refers to the evaluation report as 'the motivated award decision' and is signed by the director general — under Article 30, §1, 7° of the Special Decree on community education, the competent authority. By expressly referring to the report, the director general adopted its reasoning as his own. The action is rejected. Vita Nova owes 200 euros court fee and 700 euros procedural compensation to the contracting authority. The contracting authority requested an increase above the 700-euro base — refused, as no concrete element justified it.
Why does this matter?
The claim 'the spec was written for my competitor' is one of the most common arguments in suspension cases — and rarely succeeds. This judgment shows precisely why: the burden is doubled. You must not only prove that one product fits the spec and that a competitor monopolises it, but also that you yourself could not have offered that product. A bidder who tenders as a 'brand-independent distributor' with a different product and explicitly compares it to the 'suspect' product in the offer destroys its own plea. On top of that: being cheapest on price guarantees nothing. Losing 10 points on quality must be made up elsewhere — and with a 50/30/30 weighting, the quality assessment is often decisive.
The lesson
Before challenging an award on the basis that specs were tailored to a competitor, run an internal audit: (1) could you have offered that product yourself, and if not, what stopped you? (2) does your own offer contain anything that contradicts your claim (e.g. a comparative analysis acknowledging that product as an option)? (3) would a successful plea actually flip the ranking, given the points gap? Only when all three boxes are ticked does the plea stand a chance. With large quality gaps (>10%), attacking the spec is almost never enough — you must also attack the quality scoring itself with concrete counter-evidence per criterion.
Ask yourself
You finished second by a gap of more than 10%. Your first instinct: the spec was tailored to the winner. Before going to the Council of State, read your own offer line by line and look for phrases like 'we compared X and Y', 'both devices comply', 'we could also have offered brand Z'. Find one? It nullifies your plea — rethink the strategy or attack the quality scoring instead.
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 →