A photo of a bicycle is not a 'description of the equipment' — and with five defects in your bid you don't get a second chance
The City of Ghent excludes SGI Security from a EUR 3 million parking-control contract because of five cumulative defects in its bid (deviating walking routes, no planning tool, only a photo of a bike, only a photo of a uniform and contradictory hourly rates) — the Council of State confirms: a contracting authority is not obliged to plug every gap in a bid with a clarification request.
What happened?
In March 2017 the City of Ghent launches an open call for tenders for parking control services, estimated at EUR 3,050,964 excl. VAT. The specifications MB 14/2017 are published in the Belgian tender bulletin on 14 March 2017, but not in the Official Journal of the EU. Three bidders submit: NV Trigion, G4S Secure Solutions and NV Security Guardian's Institute (SGI). Trigion has the lowest price and is found regular after thorough scrutiny; G4S meets all conditions. SGI's bid is rejected by the Mobility Service on five stacked grounds. (1) Section 4.3 of the specifications says: 'The Mobility Service draws up the walking routes the controllers must follow.' SGI's bid says: 'The team leader sets out different routes.' The Mobility Service classifies this as a deviation from an 'essential specification'. (2) For the planning tool the bidder has to describe a system communicating shifts, sign-on/sign-off, basic information and changes between parking attendants, supervisors and the Mobility Service. SGI only mentions a 'Toughshield mobile phone' on which security agents receive e-mails, without any explanation of the software, the hardware on the office side, or how the Mobility Service is informed. (3) For mobility the specifications require at least 75 % of the parking attendants to have a bicycle (concretely: 17 bikes at the start) and that the bidder lists the bikes used and arranges maintenance. SGI's annex contains only a picture of a bike. (4) For workwear the specifications require sufficient trousers, quality walking shoes, summer wear, mid-season wear, winter wear, rainwear and fluorescent strips. SGI provides a few photos of a parking attendant in uniform — no list, no description. (5) The price components are not transparent: it is unclear whether some costs (planning tool, control system, commute) are included, and the standard hourly rate for a security agent shows EUR 22.35 in the price components but EUR 25.22 in the bid form, without explanation. The Mobility Service decides 'in view of the quantity' of defects not to ask for clarification and excludes SGI as substantially irregular. Trigion was meanwhile asked to clarify three points (quality walking shoes, the location of the branch manager — Antwerp, not Ghent — and the composition of the price), all answered satisfactorily. On 22 June 2017 the College awards to Trigion. SGI first attacks via extreme urgency (rejected by judgment 238.935 of 4 August 2017) and then proceeds with annulment. Before the Council, SGI raises three pleas. Plea 1: the contract should have been published in the Official Journal of the EU given the European thresholds (>EUR 3.5 million for the whole term) and Directive 2014/24/EU. Plea 2: when the City spotted unclear price components it should have asked SGI for clarification under price scrutiny (article 21 § 1 RD Procurement 2011), and certainly because it had asked Trigion. Plea 3: the specifications on walking routes, planning tool, bikes and clothing are not 'technical specifications' but performance modalities, so deviation from them cannot constitute substantial irregularity. The Council of State (Chamber President Dierk Verbiest, XIIth chamber) rejects all three. The first plea fails for lack of interest: SGI submitted a timely bid and has therefore not suffered from the lack of EU publication. The third plea is dealt with first because it is central: the concept of 'technical specifications' is very broad and precisely defines the object of the contract. The provisions under title IV 'Technical provisions' of the specifications about the walking routes (set by the Mobility Service), the planning tool, the bikes and the workwear concern how the service must be delivered to meet the City's needs in a quality and sustainable way. Even if they were performance conditions, the bidder must accept them — failing acceptance or leaving uncertainty allows the bid to be rejected. The requirement that the City itself sets the rounds (just as it sets parking zones and the retribution rules) is, given the object of the contract, essential. The second plea cannot save SGI either: the award decision expressly states that 'in view of the quantity' of defects no clarification was sought. No breach of equality: Trigion's bid had only two ambiguities in annexes plus the unclear price components, while SGI's bid had a deviation from an essential specification plus several incomplete points and contradictory prices. The application is dismissed. SGI pays EUR 400 in roll fees, EUR 700 procedural indemnity to the City of Ghent and EUR 150 for Trigion's intervention (the EUR 200 paid in excess is refunded).
Why does this matter?
Many bidders in service contracts assume a clarification request from the contracting authority always comes — as a 'second chance'. This judgment makes two things painfully clear. First: asking for clarification is a DISCRETIONARY power, not an obligation (article 96 § 4 RD Procurement 2011, now article 81 RD Procurement 2017). Second: the number of defects matters. A bid with one isolated ambiguity may benefit; a bid with five cumulative defects (including one deviation from an essential specification) shows according to the Council that the bidder participated 'with insufficient seriousness and care'. The equality principle does not protect you when your bid looks fundamentally different from the winner's — two minor ambiguities at Trigion versus five stacked defects at SGI is, for the Council, not a comparable situation. Moreover, the Council interprets 'technical specifications' very broadly: organisational provisions on who plans what with which tools, and on equipment such as bikes and clothing, all fall within the concept.
The lesson
For bidders: treat every 'Technical provisions' chapter of the specifications as a checklist where every requirement gets an EXPLICIT, DESCRIPTIVE answer — no photo, no 'we have everything', no 'standard procedure'. Manage the count of small defects: one is not fatal, five tips the balance. And cross-check your bid against the steering requirements the specifications reserve to the contracting authority: if the specifications say 'the contracting authority sets X', do not write that your team leader sets X. For contracting authorities: motivate explicitly why you do NOT ask for clarification — refer to the cumulation of defects and to the deviation from essential specifications. That puts the motivation on solid ground and resists an equality complaint.
Ask yourself
Go through your most recent service bid: does it contain a written description (not just a photo or generic phrase) for every point under 'Technical provisions'? Do you count more than three separate points where you are incomplete or unclear? And read again whether any of those points is a deviation from what the specifications expressly reserve to the contracting authority?
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 →