Evaluating an excavator while 'abstracting away the boom': that does not work
The Council of State annuls the award of an excavator contract to Luyckx because, at the specification-mandated demonstration, Luyckx brought a Hitachi with a two-piece boom while its bid (and the specification) called for a monoboom — the City of Genk's defence that it 'abstracted away the boom option' during the evaluation does not stand.
What happened?
In the spring of 2018, the City of Genk launched, via a negotiated procedure without prior publication, a contract for the supply of a hydraulic crawler excavator for its Roads Department, with mandatory take-back of an existing machine. Estimated value: €140,000 excluding VAT. Specification 2018-016/AA called for a 'monoboom 3m dipper' machine on tracks. Five award criteria out of 100 points: price (35), technical value (35), evaluation of the demonstration (10), warranty and service (10), driver comfort (10). Article 9 of the specification provided that the City could require, on pain of exclusion within ten days, demonstrations 'with the proposed machine'. Three bids: JCB Belgium (€134,646), Luyckx (€139,121) and Keymaco (€129,000 — the cheapest, offering a Doosan DX225LC-5). The demonstrations took place. Keymaco brought its Doosan with monoboom. Luyckx, however, brought a Hitachi 2x210 LC6MN with a two-piece boom — an articulated arm with fundamentally different geometry, dump height and lifting characteristics. Neither party disputed this at the hearing. On 8 June 2018 the City drafted an evaluation report praising the Hitachi: 'highly precise levelling and perfect digging'. Final scores: Luyckx 87.3 — Keymaco 83 — JCB 80.5. Luyckx won by 4.3 points and scored 9/10 on the demonstration criterion against Keymaco's 7. On 19 June 2018 the contract was awarded to Luyckx. Keymaco challenged: the demonstration was a key specification element and Luyckx had not shown the proposed machine. The City's defence had a peculiar creativity: 'in evaluating the demonstration, we abstracted away the option monoboom versus two-piece boom; we only looked at the machine itself'. The Council of State sweeps that aside. Article 9 ('demonstration with the proposed machine'), read together with article 1 ('excavator with monoboom'), leaves no room: the demonstration had to use such a machine. And 'abstracting' the boom is factually impossible — the evaluation report shows the City put each of the three machines to work for two hours including digging and levelling, tasks that by definition require a boom. The City did not even contest that the type of boom determines the quality of the work performed. The specification was breached, and with it equal treatment between bidders. Award decision annulled, City of Genk ordered to pay €920 in costs.
Why does this matter?
Where award procedures include a demonstration or test phase, there is a temptation to be 'pragmatic': the bidder showed up with the wrong configuration, but the bid is fine on paper, so what's the issue? This judgment says: the issue is substantive. The demonstration is part of the award assessment with its own points, and if one bidder works with a different configuration than its bid, the comparison is skewed. The cheapest bidder loses here on a demonstration that should never have happened the way it did. For contracting authorities the practical test is sharp: can you explain, for each award criterion, which features were and were not weighted — and does that distinction hold when you score levelling and digging?
The lesson
If you organise demonstrations or trial setups, write into your specification crystal-clear which configuration bidders must show, and verify it on the spot. If a bidder turns up with a different version, your options are limited: either re-run the demonstration with the right machine, or reject the bid. 'Abstracting away' the difference afterwards does not survive Council of State review once that difference directly affects the performance you are scoring. For bidders: if a competitor demonstrates something different from its bid, raise it together with your request to access the evaluation report — it is a strong ground for annulment.
Ask yourself
For contracting authorities: if you use a demonstration or test as award criterion, can you show, for each scoring element, that you only assessed the common 'core machine' and not the specific configuration each bidder brought? For bidders: at every test phase, document or have it logged what the other bidders show, and compare to their bid as soon as it is available to you.
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 →