Does it flip open or slide out? The ambiguous wheelchair ramp that cost Ebusco 75 of De Lijn’s BRT buses
De Lijn excluded Ebusco’s final offer for lot 4 of its e-bus framework agreement — an indicative 75 articulated electric buses for high-quality public transport — because the offer referred simultaneously to a flip-open ramp (in the technical data sheet and on the drawings) and a slide-out ramp (in the vehicle description and a PowerPoint with three ‘solutions’); the Council of State held under extreme urgency that this uncertainty about what exactly was offered at what price is a substantial irregularity, and that neither the doctrine of the purely material error nor the right to be heard could save Ebusco.
What happened?
Within the same e-bus framework agreement in which VDL was excluded on lot 1, lot 4 — an indicative 75 articulated electric BRT buses of about 18 metres — turned on a detail with large consequences: the electric wheelchair ramp. Point 3.2.8 of the specifications prescribed a strict kneeling sequence: the bus kneels (maximum 4 seconds), the ramp slides out, and only then may the doors open; the ramp may ‘not move in or out while the door is open’. A flip-open ramp, which tilts outwards from inside through the opened doors, by definition cannot follow that sequence. Ebusco offered such a flip-open ramp in its first offer, received an explicit question from De Lijn on 9 September 2022 (‘Please offer a ramp that can be used in conformity with the specifications’), and presented a PowerPoint during the negotiations of 30 September with three solutions: the flip-open ramp as ‘preferred solution’, a partly recessed slide-out ramp as ‘alternative solution’ and a slide-out ramp fully integrated in the floor as ‘compliant solution to current requirements De Lijn’. In its BAFO of 28 October 2022, the vehicle description stated that the bus would get a ramp ‘with a sliding operation’ — but the technical data sheet still listed the type and brand of the flip-open ramp, adding that the brand ‘will be adapted following the choice of supplier of the electric sliding ramp’. The drawings were equally contradictory: at the fire detection system the battery components still sat in the floor, exactly where the sliding ramp had to go, and the 2D and 3D plans and exterior views showed a (even manual) flip ramp with a visible hinge. On 8 December 2022 the award report found the BAFO substantially irregular: the flip ramp offered breached point 3.2.8, and it moreover remained uncertain which solution was offered at what price, preventing comparability. De Lijn’s board excluded Ebusco on 14 December 2022 and awarded the lot to VDL Bus & Coach. The Council of State saw no serious plea against this. The reasoning with two independent grounds was not contradictory. There was no ‘purely material error’ that De Lijn had to correct under article 42, § 2 of the utilities procurement decree: Ebusco had not simply copied the data from its first offer but had itself supplemented them, and the possibility of asking for clarification is not an obligation. The confirmation letter of 14 November 2022 — which moreover bore the reference of lot 1 — came after submission and could not remove the contradictions. That the ramp type had no price impact remained a mere assertion: the inventory contained only a total price, and De Lijn made it plausible that the ‘Ebusco version 3.0’ model would have to be ‘rethought’ for an integrated sliding ramp, with battery components moving to the roof. The right to be heard offered no relief either: a regularity decision does not withdraw a previously granted advantage and is not a sanction, unlike the exclusion for grave professional misconduct in the Court of Justice’s RTS Infra judgment. The application was rejected; Ebusco bears the roll fee of 200 euros, the contribution of 24 euros and a procedural indemnity of 770 euros owed to De Lijn; VDL bears its intervention fee of 150 euros.
Why does this matter?
Together with VDL’s exclusion on lot 1, this judgment forms a diptych on the same procurement, and the joint lesson is remarkably consistent: in multi-million-euro files, offers do not fail on the big picture but on internal inconsistencies between offer documents. The Council confirms three principles every tenderer should know. One: the BAFO is ‘the only binding proposal’ — what was said or shown during Q&A rounds, negotiations or in a PowerPoint does not count if it is not in the final offer itself. Ebusco had its compliant solution ready, even presented it as ‘compliant solution’ and ‘result’, but left the technical data sheet and the drawings unchanged. Two: the doctrine of the purely material error is narrow — whoever does not blindly copy data from a first offer but deliberately supplements it (‘brand will be adapted following the choice of sliding ramp supplier’) cannot later invoke a slip of the pen, and the authority may ask for clarification but need not. Three: the right to be heard does not apply to regularity decisions — the Council sharply distinguishes the exclusion of an irregular offer from the exclusion for professional misconduct (RTS Infra), where a prior hearing is required. The judgment also clarifies the information position of the excluded tenderer: he is entitled only to the reasons for his exclusion, not to the full award decision, and a notification defect affects at most the appeal period, not the lawfulness of the decision itself.
The lesson
For tenderers: when an authority explicitly points out a non-conformity during the procedure, rework every document of your offer — data sheet, description, plans, drawings and price schedule — not just the accompanying text. A PowerPoint with a compliant option, a confirmation letter afterwards or your ‘clear intention’ do not outweigh a technical data sheet that still lists the old product. Check systematically for internal consistency before submission, preferably by someone who did not write the offer. And realise that with a final offer in the utilities sectors you have no right to a second chance, cannot expect correction as a ‘material error’ and need not be heard beforehand. For authorities: De Lijn shows how it is done — a precise technical requirement with a safety rationale, a documented warning in the Q&A round, and an exclusion reasoning on two independent grounds. Build such a record and you will stand firm before the Council of State.
Ask yourself
After negotiations or Q&A rounds, did you adapt every offer document to your final solution, or do your data sheet and drawings still refer to a previous version? Is your compliant solution in the BAFO itself, or only in a presentation or covering letter? Do you know that an authority may ask for clarification but need not, and that a deliberately supplemented entry is no longer a ‘purely material error’? And as an authority: do you base your exclusion reasons on several independent grounds, and do you correctly limit the notification to the excluded tenderer to the extract with the reasons for exclusion?
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 →