The tender requires integration with one supplier's hardware — and that supplier bids and wins. That alone is not bias
The Council of State refuses to suspend an award to French company Timescope for a VR application about Le Grognon in Namur, even though the tender expressly required integration with Timescope hardware — because that specification appears objectively justified by the subject matter of the contract and the applicant cannot demonstrate a concrete advantage.
What happened?
The City of Namur had previously purchased VR stations 'Timescope Mini' — physical viewing devices in which visitors experience an immersive historical scene through a headset — and now wanted to commission an application that brings the site of Le Grognon to life across three time periods (Neolithic, Antiquity, Middle Ages). The contract notice and the cahier des charges expressly stated that the contractor had to integrate the application into 'Timescope Mini' stations and had to liaise with Timescope from the start of the assignment to ensure compatibility. Point III.3.5 of the cahier des charges framed this as an execution obligation of the winner. Four companies submitted offers: Vigo Universal, BXP, N-Zone and — Timescope itself, the supplier of the stations. Based on four award criteria (price 40, technical note 30, execution time 10, warranty 10, planning 10), the City ranked Timescope first, including the maximum (30 points) for the technical note. The motivation: Timescope provided 'visual intent proposals based on the 3D data made available in the tender', while Vigo received the lowest score for 'a heavily simplified, sparsely detailed technical note with no visual intents'. The contract was awarded to Timescope on 9 November 2021 and notified to Vigo on 18 November. Vigo Universal seeks suspension in extreme urgency on a single plea: in essence, a violation of Articles 4, 5 and 53 of the Act of 17 June 2016 and of the equality principle. The reasoning has three branches: (1) the second award criterion ('technical note') was applied in a way that favours Timescope through an implicit bonus for 'being the supplier' of the stations; (2) despite the tender, Timescope shared no technical information with the other candidates — BXP and N-Zone asked and got nothing; (3) the requirement of integration with Timescope stations is a prohibited discriminatory technical specification under Article 53, §4. The Council of State, again under acting president David De Roy but this time WITH the concurring opinion of auditor Lionel Renders, dissects each branch. On the first: the motivation of the criterion 2 scoring nowhere mentions that Timescope received extra points because it supplied the stations — that allegation 'lacks factual basis'. The text refers only to the substance of Timescope's technical note (the visual intents based on the 3D data, the relevant references) and to the absence of such elements in Vigo's. On the second: point III.3.5 organises the relations between Timescope and the contractor in the execution phase — not in the award phase. It imposed no obligation on Timescope to share 'sufficient technical information' with its competitors during the tender. Vigo's reading rests on a wrong interpretation. On the third: the requirement of integration with the City's existing stations and headsets seems prima facie justified by the subject of the contract — the exception of Article 53, §4, paragraph 2, 2° (justification by the subject matter). The general accusation that the City had 'chosen its co-contractor before publication' and 'organised only a sham tender' is not supported by any concrete element. The plea is not serious; suspension refused; the City must refund the 220 euros Vigo paid twice in procedural fees.
Why does this matter?
Many contracting authorities have legacy installations — stations, hardware, software, sensors, vehicle fleets — from a specific supplier. When they later procure a service, application or extension that must work on top of that installation, they face a near-inevitable dilemma: either they name the supplier expressly (and risk an Article 53 challenge), or they describe the specifications in such generic technical terms that no one can bid because the specs are practically empty. This judgment provides comfort: an obligation to integrate with a specific hardware platform is permitted when justified by the subject of the contract — the second exception of Article 53, §4. For bid managers the message is twofold: (1) 'the hardware supplier may bid and even win' is in itself no ground for suspension — find concrete evidence of an unlawful advantage; (2) if you contacted that hardware supplier for technical specs and got nothing back, that is no breach — the cooperation obligation in the tender usually applies to execution, not to the bidding phase.
The lesson
If you bid on a contract where your product must connect with equipment of a specific supplier — and that supplier is also bidding — do not immediately invoke Article 53. First ask: (1) is the integration requirement objectively connected to the subject of the contract (legacy hardware, interoperability, security)? If yes, it can fall under the exception of Article 53, §4, paragraph 2, 2°. (2) Did that supplier, through their role in the bidding phase, gain a concretely demonstrable advantage — more information, earlier access, an implicit bonus point in the motivation? Prove it with passages from the award report, not with general insinuations.
Ask yourself
A contract requires integration with supplier X's equipment, and X wins. Read the award report — does the motivation of the per-criterion scoring anywhere state that X received extra points because of being the supplier (rather than because of the substance of its offer)? If not, your Council of State plea about favouritism will 'lack factual basis'.
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 →