The width requirement was 'crucial' for Hilton and a 'target' for Vanderr — with no paper trail, De Lijn has to start over
The Council of State suspends the award of an overhead line maintenance vehicle for the Ghent tram network to Vanderr, because De Lijn first labelled the width requirement (2300 mm) as 'crucial' to Hilton Engineering and then treated it as a 'target' for Vanderr, without any written trace of that change of treatment in the administrative file.
What happened?
In November 2021 the Flemish public transport company De Lijn tendered for the supply of an overhead line mounting vehicle with telescopic work platform and rail track system, specifically for metre-gauge track, for the Ghent tram network. Negotiated procedure with prior call for competition in the special sectors (arts. 117 and 120 of the 2016 Belgian procurement act). Award criteria: price (50 pts), technical quality (25 pts), approach (20 pts), delivery time (5 pts). Clause 1.05 of the specifications listed seven 'minimum requirements for technical quality' (driving licence C, overhead line voltage, turning radii, weight, etc.). Part 3 contained 279 numbered technical/functional provisions, including requirement 23 which set the maximum width of the vehicle at 2300 mm (2350 mm at the tyres). Two bidders: Hilton Engineering and Vanderr — both selected on 7 January 2022. Hilton, honouring the width requirement, chose a non-Mercedes cabin on a narrowed chassis (2330 mm at the tyres after narrowing). Vanderr offered a standard Mercedes-Benz cabin (2500 mm, adapted by Paul Nutzfahrzeuge to 2376 mm). In the first negotiation round (25 April with Vanderr, 9 May with Hilton), according to De Lijn, Hilton itself proposed a test on the Ghent network with a 2350 mm vehicle (a vehicle Hilton had previously supplied to De Lijn for another network). That test took place on 19 May 2022, without the bidders present, and proved successful: 'the test vehicle was able to operate on the Ghent tram network'. De Lijn says that it informed both bidders that 'a greater width would not immediately lead to fewer points'. But the administrative file contains no trace of that communication. Only photographs without a caption, no negotiation minutes, no email. On the contrary: in an email of 6 April 2022 to Hilton, De Lijn had called the width requirement 'crucial' and in the Q&A of 21 January 2022 had written 'De Lijn wants a vehicle that as a whole is no wider than 2300 mm'. In a refined version of the specifications (post 19 May), requirement 23 and requirements 57-59 on the mirrors were not modified. The BAFO email of 13 October 2022 said nothing about the width. In the evaluation report: Hilton 2.5/10 for 'quality and functionality'; Vanderr 9.5/10. Reason for the gap: the superior comfort of the Mercedes cabin (central locking, power windows, heated and electrically adjustable mirrors). Hilton ends at 75.75, Vanderr at 80.55. Award to Vanderr on 16 November 2022. Extreme-urgency action on 2 December 2022. The Council finds that requirement 23 is open to more than one interpretation — arguments exist both for and against treating it as a minimum requirement — and does not delve deeper. What is crucial is what bidders were told during the negotiations. Here the inequality is glaring: while Hilton treated the width requirement as binding and thus chose an inferior cabin, Vanderr apparently received the signal that it could exceed the 2300 mm ceiling, which translated into a better score for 'quality and functionality'. From the file the Council cannot conclude that De Lijn communicated to Hilton that requirement 23 was no longer a minimum requirement. That difference in treatment was decisive for the ranking. First and third branches serious; suspension ordered. The request to suspend the implicit non-award decision is rejected (no exceptional circumstances established).
Why does this matter?
In negotiated procedures in the special sectors there is — unlike in the classical sectors (art. 38, § 5) — room to negotiate on minimum requirements and award criteria. But that room stands or falls with a strict written and symmetrical paper trail. What the authority lets one bidder understand, it must let the other understand — and this must be provable. The most treacherous aspect of this case is that De Lijn shot itself in the foot: by first labelling requirement 23 'crucial' in a written Q&A and then in an email to Hilton, then softening its position post-test without documenting that, it built a scenario in which one bidder loyally stuck to a strict interpretation while the other unexpectedly received the room to offer a superior solution. The damage in points (Hilton 2.5/10 vs. Vanderr 9.5/10 on the same sub-criterion) was directly linked to that asymmetry of information. For all authorities operating negotiated procedures — and there are many in the special sectors (electricity, gas, water, transport) — the lesson is strict: every communication that affects the scope of a specification requirement must be in writing and to all bidders, preferably via an updated version of the specifications or via Q&A on the forum.
The lesson
As a contracting authority in a negotiated procedure wishing to deviate from, refine or soften a specification requirement during negotiations: (a) update the specifications themselves and send the amended version to ALL bidders, (b) make negotiation minutes per bidder with the points discussed AND the amendments, (c) confirm in an email or letter to each bidder separately which requirement has been refined, to what extent and with what impact on evaluation. As a bidder in a negotiated procedure who notices that the authority orally indicates that a requirement is 'not so strict': ask for written confirmation. No paper = no protection. And if you have adjusted an offer on an oral indication, request after award access to the negotiation minutes with the competitor to check that you have not been unequally treated.
Ask yourself
Can you demonstrate in your administrative file, per bidder, that the same softening or interpretation of a specification requirement was communicated, on the same date and through the same channel? Or are there only photographs of a test, oral declarations and undocumented negotiation rounds? If yes: you are exposed to an inequality argument.
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 →