Two foundation rigs for 664 days — 'planning risk' costs Jan De Nul second place, and the 35-point gap kills the rest of the case
The Council of State refuses to suspend the award to THV CFE-Blaton, ruling that an execution period of 664 days with only 2 foundation rigs could reasonably be flagged as a 'planning risk', and that a 35-point gap with the winner deprives the petitioners of standing on every ground that — even at best — cannot put them in first place.
What happened?
On 21 March 2014, MIVB launched a negotiated procedure with European publication for the construction of the Erasmus metro depot within the Pulsar automation programme (see also case 235.683 on the same file from BESIX-EJD's side). Three bidders reached the BAFO stage: CFE-Blaton, Franki Construct-Jan De Nul (the petitioners here) and BESIX-EJD. On 20 July 2016 MIVB awarded the contract to CFE-Blaton for 77,980,404.86 euros ex. VAT, with a 35-point lead over Jan De Nul. Jan De Nul offered the shortest execution period: 664 days, against 811 for CFE-Blaton and 794 for BESIX-EJD. In its petition the bidder built a recalculation aimed at recovering 27 points on the 'technical files' criterion alone. On other sub-criteria too, criticism was raised. But on the key 'execution planning' sub-criterion (40 points), Jan De Nul scored 28/40 — 8 points behind CFE-Blaton. The reasoning: 'According to the contracting authority, compliance with the execution period is however not guaranteed given the very limited number of machines (328 days of foundation work with only 2 rigs).' CFE-Blaton planned 4 rigs for 425 days, BESIX-EJD 6 for 309. Jan De Nul argued that the period was a result obligation, that penalty clauses applied, and that the tender did not specify a minimum number of rigs. It also complained about a 20-20 sub-sub-criteria split mentioned during negotiations but absent from the final evaluation, about various technical-file errors (nailing, panels, anchorings, location plans, lifting bay, track equipment), and about price corrections: its own BAFO was raised by 338,743.73 euros without clear explanation, while CFE-Blaton's BAFO was increased by 482,602.60 euros for 'Omissions' on chimney fire-resistance. Chamber president Eric Brewaeys (12th Holiday Chamber) dismissed everything. On execution planning: it is not a mathematical criterion, the shortest period is not automatically the highest score; doubt about 2 rigs for heavy foundation works (a third to half of phase 1) was reasonable; sub-sub-criteria mentioned during negotiations could not be applied because they were not in the tender — applying them would itself have been a breach of the tender. On phasing: same line as in 235.683, milestone T1+18 was an 'interface milestone' and discussable; Jan De Nul's own 4-month track-unavailability proposal was even valued positively. On structure and presentation: 19/25 was reasonable because the low-voltage note was a list, not running text. Then came the sharpest lesson: the third complaint on 'technical files' could, even if entirely upheld, only yield 27 points. The gap with CFE-Blaton was 35 points. 'This sub-ground, even if found to be serious, cannot lead to the finding that the petitioners have a plausible chance of winning the contract. Accordingly, the petitioners have no standing on the third sub-ground.' Same for the first price-correction complaint: 338,743.73 euros added to your own offer hurts your own score, no standing. The second price-correction complaint about CFE-Blaton: 482,602.60 euros was no missing price but an additional cost flagged by CFE-Blaton itself in an 'Omissions' note — no Article 95 application, no regularisation. Action dismissed. Jan De Nul was ordered to pay 400 euros in court fees, 700 euros to MIVB and 300 euros to the intervening parties.
Why does this matter?
Two distinct lessons, both practice-shaping. First: in a negotiated procedure with BAFO, the contracting authority weighs your execution period against your technical means. A short period with little equipment is reread as 'planning risk' — not as quality. Penalty clauses and result obligations do not change that: the authority is entitled to make a risk-weighted prior judgment in the public interest, even if you would contractually accept the consequences. Second — and this is the most underestimated: the standing requirement in urgent suspension. For each ground or sub-ground, you must show that a favourable ruling gives you 'a plausible chance' of winning. If you trail by 35 points and your complaint can only deliver 27, you have no standing — even if the Council of State would otherwise agree with you on substance. This forces you to mathematically calibrate your grounds before filing.
The lesson
For bidders: open every petition with a 'gap analysis'. Compute the final-score deltas, list per ground the maximum point gain you can reasonably claim, and demonstrate that the sum bridges the gap with the winner. Grounds that, even at best, cannot lift you to first place are not just procedurally weak — they trigger explicit 'no standing' rejections that erode your credibility in future proceedings. On substance: when you propose shorter periods than your competitors, anticipate the 'is this feasible?' question and visibly build the guarantee into your BAFO — more machines, more crews, comparable-site references, simulations.
Ask yourself
You file a suspension petition against an award. You're 35 points behind the winner. You write four grounds, each with a potential point-gain calculation. Add them up: do you reach 35? If not — rewrite the petition, because the Council of State will dismiss the surplus grounds for lack of standing.
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 →