Writing 'we think 13 to 16 FTE would be good' to a bidder who has 5 is not clarification — it's coaching
The Brussels Region awarded the Collecto night-taxi concession to newcomer Victor Cab, which had only 5 FTEs at offer opening, after the Region wrote that 13 to 16 FTEs 'would be a good approach' and even suggested how (article 60, interns, students) — the Council of State suspends because this falls far outside what article 48, §3 of the concession law allows.
What happened?
Since 2008, Taxi Radio Bruxellois (TRB) has run 'Collecto', the Brussels collective night-taxi service that supplements public transport. TRB held the 5-year concession in 2008 and 2012. On 18 May 2018 the Brussels Capital Region launched a third procurement (tender BMB/DT/2018-019). § 21 required, among other things, that 'the candidate must employ sufficient staff to manage reservations and ensure customer service' — proven via 'a declaration of average annual headcount over the past three years'. Three bidders entered: TRB, Blue Cabs, and the consortium GOE Victor Cab (Victor Cab BVBA and Ben Thami BVBA — a newly formed entity). On 17 July 2018 the Region sent Victor Cab a letter that would later become decisive. It read: 'We note that you can deploy 5 full-time equivalents for the dispatching and that you intend to expand your headcount. We think 5 FTE will not suffice based on experience to ensure a quality service. Could you hire personnel in the coming months? Perhaps with employment subsidies, article 60 placements, students, interns... We think reaching 13 to 16 FTE would be a good approach.' Victor Cab replied that it could expand — including via article 60 placements with a CPAS. On 22 February 2019 the Region awarded the concession to GOE Victor Cab. TRB filed for urgent suspension and prevailed. Acting president David De Roy (VIth chamber) suspends on two grounds. First: article 48, §3 of the 2016 concession law allows the authority to ask for additions, clarifications or corrections to information the bidder has submitted to show it meets the selection criteria. What the Region wrote was prima facie not a clarification request but 'an invitation to make the candidacy of the intervenors evolve toward a sufficient number of FTE — which was not the case based on the initial offer'. The authority even suggested concrete means (article 60-CPAS, interns, students). That falls far outside article 48, §3. Second: at offer opening, Victor Cab had not shown sufficient headcount over the previous three years — which the tender expressly required. That breaches § 18.2 of the tender, which fixes selection at the moment of offer opening. Third reproach: the award decision merely states that on the basis of the answers 'it appears that Victor Cab and Taxis Bleus also meet the aforementioned criteria'. Such a template — a 'clause of style' — does not suffice when selection is not straightforward. The balance of interests also tilts towards TRB: the Region argued that suspension would force a fifth extension of the existing concession, totalling almost 7 years instead of 5. The Council replies dryly: such a delay is the inevitable consequence of any suspension and cannot itself defeat the suspension — otherwise the procedure would be neutralised. Suspension granted.
Why does this matter?
The line between 'clarification' (allowed) and 'addition/modification' (forbidden) has long been central in procurement law. This judgment gives a clean example of what is NOT allowed: an authority literally telling a bidder how many FTEs to reach and how (via article 60, interns, students). For bidders this means: if an authority sends you a 'clarification request' that is in fact a coaching instruction and your competitors don't get equivalent treatment, you have a strong suspension ground. For authorities the lesson is more painful: never write down what you would 'find good' when a bidder is below the threshold. Only ask whether the bidder can substantiate what it claims to have. This is also an important nuance on the rule that selection is judged at offer opening — asking for evidence of what the bidder already has is fine, asking it to grow to what it doesn't yet have is not.
The lesson
As an authority: re-read your clarification letters before sending them. If the sentence carries a normative component ('we think X would suffice', 'it would be good to reach Y', 'consider working with Z') and the bidder was below the threshold at offer opening, you are coaching, not clarifying. Strike those sentences and ask only for evidence. As a bidder ranking second: ask for sight of the correspondence between the authority and the winner. Does it contain instructions, normative remarks or suggestions about staff, turnover, capacity or references? You have a suspension ground. Second lesson: selection is judged at offer opening. Whoever only meets the criterion later doesn't legally meet it.
Ask yourself
Are you a contracting authority and did you send a 'clarification letter'? Re-read it. Does it contain phrases like 'we think', 'perhaps you could', 'consider', 'it would be good', 'we expect'? Red flags. Are you a bidder who just lost to a newcomer? Ask the authority (if needed via the Council of State after a suspension request) for access to all correspondence between opening and award.
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 →