3.3 kWh short: how contradictory battery figures cost VDL De Lijn’s mega-order of 500 electric buses
De Lijn excluded VDL Bus & Coach’s final offer for the framework agreement for an indicative 500 articulated electric buses as substantially irregular because the technical data sheet (552 kWh × 90 % = 496.8 kWh) and the inventory (552.7 kWh × 90.49 % = 500.1 kWh) contradicted each other on the minimum net battery capacity of 500 kWh — and the Council of State confirmed under extreme urgency that a final offer with such a defect can no longer be regularised.
What happened?
De Lijn, the Flemish public transport company, tendered a framework agreement for the supply and optional maintenance of e-buses, divided into five lots, through a negotiated procedure with prior call for competition. Lot 1 covered an indicative 500 articulated electric buses of about 18 metres, with a whole-life calculation over 16 years and 960,000 kilometres and as award criteria the Total Cost of Ownership (70 points), the range for Post 1 (20 points) and the charging time for Post 2 (10 points). The specifications imposed two requirements on pain of exclusion for substantial irregularity: a net ‘Beginning of Life’ battery capacity of at least 500 kWh — calculated as gross capacity times Depth of Discharge — and a range of at least 200 kilometres. Twelve candidates were selected, seven submitted offers, and after negotiations in September 2022 a BAFO round followed. In VDL Bus & Coach’s BAFO, however, the figures diverged: the inventory stated a gross capacity of 552.7 kWh and a DoD of 90.49 % (net 500.1 kWh — just enough), but the technical data sheet and the vehicle description gave 552 kWh and 90 % — net 496.8 kWh, below the bar. De Lijn requested the battery supplier’s specifications and received a sheet titled ‘Specifications of 551kWh NCC Battery System’: effective energy 551.45 kWh and a ‘System Operating SOC Range’ of 10 % to 90 %, hence a DoD of 80 %. VDL argued that those general values did not apply to the specific De Lijn application and, on 18 November 2022 — after the reply deadline — produced a supplier statement ‘allowing’ 552.7 kWh and 90.49 % for this contract. To no avail: on 30 November 2022 De Lijn declared the BAFO substantially irregular and awarded the contract to Iveco Belgium. The Council of State sided with De Lijn across the board. A contracting authority need not simply accept a value stated by a tenderer when other elements of the offer show that it cannot be correct, and could infer from the supplier’s sheet that the battery on offer delivered not 552 but 551.45 kWh. The plea for regularisation failed too: article 74, § 4 of the royal decree on procurement in the utilities sectors allows regularisation of substantial irregularities only before the negotiations, while § 3 obliges the authority to annul a substantially irregular final offer — and a defect only noticed when examining the BAFO does not lose its substantial character. The application was rejected; VDL bears the roll fee of 200 euros, the contribution of 24 euros and a procedural indemnity of 770 euros owed to De Lijn.
Why does this matter?
For a contract of this magnitude — hundreds of buses, a framework agreement that will shape Flemish public transport for years — the outcome ultimately turned on a difference of 3.3 kWh on paper. The judgment shows how implacably the regime of minimum requirements works: whoever states different parameter values in different offer documents creates a contradiction the authority need not massage away, even where the tenderer has neatly entered the ‘right’ end result in the inventory. The Council confirms that an authority may actively probe: it may verify the stated values at the source — here the battery supplier — and exclude the offer when the source specifications do not support the flattering figures. That the supplier afterwards delivers a more favourable statement, ‘tailored’ to this award procedure, does not save the offer. At least as important is the procedural lesson on the BAFO in the utilities sectors: the regularisation option of article 74, § 4 exists only before the negotiations; a substantially irregular final offer must be annulled, with no room for a reasonableness or proportionality test and without the authority having to explain why it took no milder measure. And the Council respects De Lijn’s choice to require, alongside the range, a minimum battery capacity: a ‘hard’, verifiable parameter next to a criterion that rests on declarations and hypotheses.
The lesson
For tenderers this is a warning to keep core technical figures consistent across all offer documents: data sheet, product description, inventory and annexes must state the same parameter values, because one deviating source suffices to sink a minimum requirement — and with a final offer there is no second chance. Do not count on clarifications afterwards: a statement from your supplier boosting the values ‘for this contract’ comes too late and rather undermines your credibility. Also check that your supplier’s specifications actually cover what you promise before you submit. For contracting authorities the judgment shows how a well-built specification protects itself: an explicit minimum requirement ‘on pain of exclusion’, a fixed calculation formula, a ranking of documents in case of contradiction, and the reflex to test stated values against source specifications. Work like that and you stand strong when an excluded tenderer goes to the Council of State.
Ask yourself
Do the technical parameters in your data sheet, your product description and your inventory match to the decimal — and did you have someone else verify that before submission? Do you know that a substantial irregularity in a BAFO can no longer be regularised, even if it already crept into your first offer and nobody noticed it then? Do your suppliers’ official specifications cover the values you offer, or are you promising more than their datasheets support? And as an authority: do you formulate your minimum requirements with an unambiguous calculation method and a ranking of documents, so that contradictions leave you no need to guess at the tenderer’s real intention?
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 →