Extracting a 500 mm centre-to-centre distance from a BIM model while the specifications show a figure with 122 mm: that bet Franki lost
The Council of State rejects Franki Construct's extreme-urgency action against the award of the cycle bridge at the N75 in Dilsen-Stokkem to Stadsbader: deriving a centre-to-centre spacing of 500 mm from an enlarged detail of the layout plan, while the specific specifications twice show a figure with 122 mm and safety requirements rule out a large opening, does not create a contradiction between the plan and the specifications that could be resolved via the precedence rule.
What happened?
The Flemish Roads and Traffic Agency (AWV) launched a tender in August 2022 for the construction of a cycle bridge at the N75 x Sparrendal road junction in Dilsen-Stokkem. Open procedure, price as the sole award criterion. The specifications comprised standard specifications 250/260/270, drawings, BIM models, BIM protocol, BIM execution plan, bill of quantities and the specific specifications — in that order for standardised items (deviating from article 80 of the 2017 placement royal decree which sets the classical order). Two bidders tendered: Franki Construct and Stadsbader Contractors. During the price review the authority asked Franki for a price justification for item 198 (corten steel and stainless steel railing), representing 17.79 % of the contract. Franki attached an offer from its subcontractor Almex showing that it had calculated with a centre-to-centre spacing between railing posts of 500 mm. The specifications, however, required 122 mm. Franki's defence: the plans (specifically the detail plan 'ground plan and section structure') prevail over the specifications for non-standardised items; by enlarging a detail of that plan and extrapolating a 2.1 m distance with four dots, a spacing of 500 mm follows; and the BIM model confirms it. The authority declares Franki's offer substantially irregular and awards the contract to Stadsbader on 10 November 2022. Franki files an extreme-urgency action on 29 November 2022. The Council is convinced by none of it. First: the specific specifications show twice — under B.1 of chapter 21 and under 1.1.1.2.A of chapter 32 — the same figure with the handwritten annotation 'c.-to-c. 122 mm'. That spacing does appear prima facie to be a specification, even if it departs slightly from the 100 mm of standard specifications 260. Second: nothing about the detail plan naturally yields a spacing requirement between the posts. Dividing 2.1 m by 4 gives 525 mm, not 500 mm — Franki's arithmetic does not add up. The plan itself is drawn at scale 1/500, meaning 500 mm on site corresponds to 1 mm on the drawing; deducing exact distances is technically impossible. The plan also contains the warning that 'all indicated dimensions on the drawings are theoretical measurements' which the contractor must adjust as necessary. The enlarged detail appears in the specifications only to illustrate the mock-up (item 99 of chapter 25 of standard specifications 260), not to prescribe the post spacing. Third: even if 500 mm could be derived from the plan, procurement documents must be read coherently — a 500 mm spacing is incompatible with safety requirements (5.6.2 of chapter 21: railing must be 'sufficiently closed'; 4.8.1: a 100 mm diameter ball must not pass through). A 500 mm gap allows large objects to fall and 'small children' to slip between the posts. Fourth: if Franki had doubts, article 81 of the 2017 placement decree imposed an express duty to notify — at least ten days before the tender deadline. Franki never asked a question. Equality principle not violated: Stadsbader stuck to 122 mm, Franki chose by itself a different interpretation. Single ground unfounded in all its parts; action rejected.
Why does this matter?
The rise of BIM models and the often voluminous drawing packages attached to specifications lead in practice to disputes over which document prevails. Many specifications (certainly at AWV) contain an express precedence clause departing from article 80 of the 2017 placement decree — typically: BIM → drawings → bill of quantities → specifications. Bidders are then inclined to assume that whatever they see in the drawings is binding. This ruling qualifies that reflex. A drawing must be read in context: the indication on the drawing must be clear and unambiguous, it must be compatible with the rest of the documents (safety, conformity with standard specifications), and it must not be constructed by extrapolation, zooming and counting of 'dots'. The ruling also clarifies how article 81 of the placement decree (signalling errors or omissions) works as a trap: if you doubt and remain silent, you cannot afterwards hide behind the precedence clause.
The lesson
If in your offer you depart from what the specific specifications expressly prescribe because you derive a different figure from a drawing or a BIM model, ask yourself three questions first. One: does the figure you derive from the drawing appear literally somewhere on the drawing, or must you reconstruct it by measuring, enlarging or extrapolating? The more reconstruction, the shakier. Two: is your interpretation compatible with the safety and conformity requirements (standards, standard specifications) elsewhere in the documents? If not: drop it. Three: did you signal the ambiguity at least ten days before the tender deadline on the e-Procurement forum or to the project manager? If not: you have lost the right to hide behind the precedence clause.
Ask yourself
Are you departing in your offer from an express dimension in the specifications on the basis of an enlargement and a count of elements on a drawing? And have you not signalled that ambiguity on the forum before the deadline? Then you have not only an irregular offer, but you may also hand in your price justification.
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 →