Does it flip open or slide out? The ambiguous wheelchair ramp costs Ebusco De Lijn's mega-contract for 500 articulated e-buses
Because Ebusco's BAFO for lot 1 of the framework agreement for some 500 electric articulated buses referred simultaneously to a flip-open and a slide-out wheelchair ramp, De Lijn was entitled to reject the tender as substantially irregular and award the lot to Iveco: the Council of State dismissed both extreme-urgency actions, holding that the BAFO is the only binding proposal and that a carelessly drafted tender is no 'purely material error' the contracting entity must correct.
What happened?
De Lijn used a negotiated procedure with prior call for competition to place a framework agreement for the supply and optional maintenance of e-buses, divided into five lots. Lot 1 covered an indicative 500 electric articulated buses of about 18 metres, assessed on three award criteria: Total Cost of Ownership (70 points), range of item 1 (20 points) and charging time of item 2 (10 points), each calculated over a bus lifetime of 16 years and 960,000 km. The specifications were strict on the electric wheelchair ramp: point 3.2.8 imposed a mandatory kneeling sequence, with the core rule that 'the electric ramp may not extend or retract while the door is open'. Twelve candidates were selected, seven submitted tenders. In its first tender Ebusco offered a flip-open ramp ('top-open operation'). In August 2022 De Lijn explicitly asked whether a slide-out ramp was possible, and on 30 September 2022 an entire negotiation session was devoted to the ramp, where Ebusco presented a PowerPoint with three solutions: the flip-open ramp ('preferred solution'), a partly recessed slide-out ramp ('alternative solution') and a slide-out ramp fully integrated into the floor ('compliant solution to current requirements De Lijn'). In its BAFO of 17 October 2022, however, Ebusco kept things ambiguous: the vehicle description and the decisive technical information sheet again mentioned the flip-open ramp — with the cryptic addition 'brand will be adjusted following choice of supplier electric sliding ramp' — while the PowerPoint annexed to the BAFO ticked option 3 as 'compliant'. On 30 November 2022 De Lijn declared the BAFO substantially irregular: the flip-open ramp breached point 3.2.8, and it moreover remained uncertain which solution was being offered at which price, preventing the comparability of tenders (art. 74 of the Royal Decree on procurement in the special sectors). Lot 1 went to Iveco. Ebusco brought two extreme-urgency actions (against the rejection and against the award), which the Council joined. In vain: the Council saw 'numerous inconsistencies' in the BAFO — a drawing accompanying the fire-detection system showed the battery components in the floor, exactly where the slide-out ramp had to go, and the 2D and 3D plans even showed a manual flip ramp. There was no purely material error that De Lijn should have corrected under article 42, § 2: Ebusco had not merely copied the data from its first tender but had deliberately supplemented them. The confirmation letter of 14 November 2022, sent after the BAFO deadline, could no longer remove the contradictions, and the right to be heard did not apply: a declaration of irregularity is not a sanction. Both actions were dismissed; Ebusco bears, per case, a roll fee of 200 euros, a contribution of 24 euros and a procedural indemnity of 770 euros.
Why does this matter?
This judgment addresses one of the most dangerous moments in a negotiated procedure: the moment the BAFO is submitted. Everything said before — Q&A rounds, presentations, negotiation sessions — no longer counts legally once it is not in that single binding document. Ebusco had indeed presented a compliant slide-out ramp during the negotiations and ticked it as the 'compliant solution' with 'result' in its PowerPoint, but left the technical information sheet and the vehicle description on the flip-open ramp. The Council confirms three principles every bidder should know. One: the bidder itself is responsible for the careful drafting of its tender, and the contracting entity's ability to ask for clarification is not an obligation. Two: the notion of 'purely material error' is narrow — a slip in filling in or transferring data — and does not cover a substantive ambiguity the bidder itself created. Three: a confirmation after the submission deadline repairs nothing. The judgment also clarifies that the right to be heard, as a principle of sound administration, does not apply to a declaration of irregularity: unlike the exclusion for grave professional misconduct in the Court of Justice's RTS Infra judgment, it withdraws no granted advantage and sanctions no conduct. Finally, the judgment shows the power of layered reasoning: because the rejection rested on two independent grounds (breach of the specifications and non-comparability), the Council could set aside criticism of additional motives — such as the prohibition of variants — as superfluous.
The lesson
For bidders: your BAFO is your only voice. Before submitting, check every document for consistency — technical sheets, vehicle or product description, plans, drawings and annexes — especially when you changed solutions during the negotiations. Adding a presentation as an annex does not overrule the binding technical sheet; if the specifications set an order of precedence between documents, the sheet wins. Do not count on the contracting entity correcting an ambiguity as a 'material error' or asking you for clarification: it may, but it need not. And do not send a repair letter after the deadline — it changes nothing legally. For contracting entities: build your rejection decision on several independent grounds and document your reservation as early as the first tender round, as De Lijn did; that makes the decision nearly unassailable in interim proceedings. And where you find a deviation from a core technical requirement linked to safety, you may qualify it as substantial without first hearing the bidder.
Ask yourself
After the final negotiation round, did you check every document of your BAFO — including annexes and drawings — for traces of your earlier technical solution? Do you know which order of precedence the specifications give the tender documents in case of contradiction, and is your final choice in the document that wins that ranking? Do you realise that a contracting entity may ask for clarification but never must, and that a letter after the submission deadline can no longer remove a contradiction? And as a contracting entity: does your rejection decision rest on more than one independent ground, and have you documented in writing your reservation from an earlier round?
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 →