Bidding stricter than the special specifications require gives no advantage – not even when the Standard Specifications 250 are stricter
ADEDE loses the contract for clearing WW explosives on the Flemish coast by a single point to a construction company that bid with only one CTE expert, and hears from the Council of State that the special specifications may deviate from the Standard Specifications 250 which normally require two CTE experts.
What happened?
The Maritime Services and Coast Agency of the Flemish Region launches a tender in September 2018 for the 'Detection and removal of conventional and toxic explosives' (CTE) on the beaches and in the dunes of the Flemish coast – special specifications no. 16EH/18/23, open procedure for works, term renewable up to four years. The works involve clearing the beaches of CTEs (mines, grenades, mortars, projectiles, bombs) to a depth of at least 2 m below beach level, and supporting DOVO and the archaeological services. Five award criteria: price (20 points), safety quality (10), completeness and accuracy of clearance (10), team quality (7), preservation of the existing environment (3), with an exclusion threshold of 21/30 for criteria 2 to 5. Three bidders: BVBA ADEDE, NV Aannemingen M. & J. Braet, and BVBA BOM-be. BOM-be is not selected on technical capacity; ADEDE and Braet move on and both offers are deemed regular. ADEDE bids 679,348.39 euros incl. VAT and scores 19/20 on price; Braet bids 643,613.74 euros incl. VAT and scores 20/20. On the other four criteria both bidders get the maximum. Final score: Braet 50/50, ADEDE 49/50. On 12 December 2018 the contract is awarded to Braet. ADEDE files an extreme-urgency application with two pleas. First plea: according to its website Braet is a general construction company (façade and concrete renovation, water and concrete construction, structural work) and it is implausible that it has achieved the specific CTE turnover of 500,000 euros excl. VAT averaged over the last three financial years required by the specifications. Moreover, Braet attaches only 'letters of intent' from subcontractors, not 'commitments' as required by art. 73, §1 of the 2017 Royal Decree on Placement. Second plea – the heart of the case: the specifications declare Standard Specifications 250 for Roadworks (SB250) applicable, and SB250 point 11.4.1 last paragraph states: 'The detection, exposure and identification of CTE shall be carried out by a search team consisting of a minimum of two CTE experts.' ADEDE dutifully bids with a clearance team of two CTE experts plus a diving team of three experts, plus four certified archaeologists (qualified ipso jure as metal detectorists). Braet bids with 'a CTE expert and crane operator with CTE experience' plus a diving team of three. According to ADEDE, Braet cannot possibly score the same 10/10 for 'safety quality' and 7/7 for 'team quality' when it does not meet SB250. The Council of State (acting president Johan Bovin) does not follow ADEDE. On the first plea: the confidential documents show that Braet does meet the required specific turnover, certified by TWO auditors – nothing indicates flawed audit work, and art. 67 §1(2)(2°) of the 2017 Royal Decree expressly allows such a declaration. The same applies to the subcontracting: the so-called 'letters of intent' do constitute effective commitments by each subcontractor. The factual situation differs fundamentally from that in suspension judgment no. 225,329 of 4 November 2013 and annulment judgment no. 229,190 of 18 November 2014, to which ADEDE refers. On the second plea the decisive finding follows: the special specifications themselves provide in sub-task 1.4 that the detection of CTE takes place 'under the leadership of a competent and accepted CTE expert', and in sub-task 1.5 that the detection and clearance takes place 'under the supervision of an accepted CTE expert'. The special specifications therefore require only ONE CTE expert, not two. The applicability of SB250 does not at first sight exclude that the special specifications may derogate from it. Nothing prevents the contracting authority from valuing two CTE experts, but when both bidders score full marks on the basis of their complete plan of action (toxic munitions in the risk analysis, diving team of three experts, safety perimeter pending DOVO), there is no illegality. The archaeologists argument also falls away: Braet, like ADEDE, has designated an archaeologist under item 11 of the summary measuring statement. The second sub-plea (criticism of Braet's detection method – fluxgate magnetometry versus electromagnetometry under point 4.4.3 of the Practical Guide) is rejected because it is too technical for a prima facie examination in extreme urgency, and because ADEDE fails to show that Braet would not be using the 'best available technology'. A notable procedural point: Braet and the Flemish Region have submitted the offers as confidential – Braet invokes the organic confidentiality regime of the law of 17 June 2013 for its full offer, summary measuring statement and 2015-2017 annual accounts. At the hearing, ADEDE asks for the confidentiality to be lifted to verify the defence. The Council refuses: in extreme urgency it is not advisable to open up a competitor's trade secrets without thorough examination, and the right to a fair trial is preserved by the fact that the Council itself may include the confidential documents in its assessment. Application rejected. ADEDE pays 200 euros roll fee, 20 euros contribution and 700 euros procedural indemnity to the Flemish Region, and 150 euros roll fee for the intervention.
Why does this matter?
Many bidders trust that bidding 'strictly according to the standard specifications' automatically gives them an edge over competitors who work more loosely. This judgment shows that this does not work: the SPECIAL specifications take precedence, and if they ease the requirements (one CTE expert instead of two), the competitive advantage of stricter bidding does not automatically translate into points on the award criteria. In addition: in extreme urgency the applicant rarely has access to the confidential offer of the chosen competitor. The Council may look at the documents itself, you may not – which means that defence pleas concerning the composition, quality or price of the winning offer often hang in the air unless you can substantiate them with external data. And a third, often underestimated point: the name of a document ('letter of intent' versus 'commitment') is not decisive – the Council looks at the substance. A subcontractor who genuinely commits specific resources meets art. 73 §1 of the 2017 Royal Decree, even if the document is named differently.
The lesson
ALWAYS read the special specifications before drawing conclusions from the applicable standard specifications. If the special specifications ease a requirement (e.g. one expert instead of two), drop the overkill on your end too: extra capacity costs money in your price and is not always converted into points if the contracting authority takes the view that the minimum suffices. And if you are challenging the assessment report because you suspect that the winning offer does not meet a formal requirement: make sure you can substantiate it with external data (commercial register, annual accounts, public sources). In extreme urgency you rarely get to see the competitor's offer.
Ask yourself
In every file where a standard specification (SB250, SB260, SB270) applies, compare it article by article with the special specifications: where the special specifications are softer, you know that bidding stricter only makes sense if it also yields extra points on the quality criteria. And before going to extreme urgency: do you have public sources to substantiate your suspicions about the winning offer (turnover, technical capacity, team composition)? Without that external substantiation your plea will be weak.
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 →