Software that still 'needs adapting' to NMBS's TPST platform is not a substantial irregularity — and you cannot include energy consumption from the TCO formula in the abnormality test
The Council of State dismisses Moser-Baer's appeal against the award to Westerstrand of a 4.57 million euro framework agreement for industrial GPRS clocks at Belgian railway stations, and also rejects the 726,092.80 euro damages claim.
What happened?
NMBS launches a framework agreement for the supply of industrial GPRS clocks with communication modules for station facades and platforms (specifications CS4/0001581234, 4 years, 2,400 clocks in the TCO formula + 2,700 clocks in the inventory). The contract falls within the special sectors and is awarded via a negotiated procedure with prior call for competition. Five candidates are selected, three submit offers. Westerstrand bids 4,319,550 euro (comparative price 5,657,208 euro under the TCO formula), Moser-Baer bids 6,450,952 euro (comparative price 7,260,928 euro), and the third bidder F. bids 4,946,094 euro (basic option, comparative price 7,370,352 euro). NMBS awards to Westerstrand for a budget of 4,570,000 euro. Moser-Baer takes the case to the Council of State with three grounds. One: Westerstrand's offer would be substantially irregular because its existing software still needs to be adapted to communicate with NMBS's TPST platform. The Council disagrees. Annex C of the specifications requires that the application 'be compatible with the TPST platform' but also stipulates that 'the supplier shall contact NMBS to inform itself about the compatibility criteria' and even provides an option for obtaining the source codes 'in case the bidder does not yet have software and must develop it for this contract'. The specifications therefore do not require that the bidder already have a fully compliant clock at the time of bidding. Two: there would have been no proper price investigation, since Westerstrand's price deviates 16.35% from the average 'comparative price' and 28.60% from the final award budget. The Council rejects: Moser-Baer wrongly relies on the 'comparative price' (which incorporates clock energy consumption via the TCO formula). Energy consumption is not part of the offer price, but only a parameter of the award criterion. The abnormality test must use the offer price, not the award criterion outcome. Moreover, framework agreements work with maximum-value estimates (art. 7, §5 KB special sectors), making the estimate a less useful reference point. Three: the award decision would contain contradictory amounts and no date. The two amounts (5,657,208 comparative price vs 4,570,000 budget) are not contradictory — the specifications make the difference clear via the TCO formula. The absence of a date does violate art. 5, 1° of the legal-protection law, but Moser-Baer demonstrates no interest: it could have inferred that the decision was taken between 24 April (opening of offers) and 4 August 2020 (notification), and never contested the competence of the author. Inadmissible. The appeal is dismissed, the 726,092.80 euro damages claim is rejected, costs against Moser-Baer.
Why does this matter?
Three practical lessons for bid managers in IT supply contracts, and in particular for special-sector contracts where customisation and compatibility with existing platforms often play a role. One: an offer with a software solution that still needs adapting can be entirely regular if the specifications allow this — look closely at wording such as 'be compatible with', 'develop for this contract' or optional source-code transfer. Two: price differences relative to a 'comparative price' from a TCO formula or multi-criteria award criterion are not a valid basis for an abnormality test — the contracting authority must use the offer price, not the award score. Three: with framework agreements, the Council of State views the comparison with the estimate with more reserve, because the estimate looks at maximum value (estimated maximum volumes), which is by definition a 'cautious' upper limit.
The lesson
If you challenge an award based on a competitor's 'abnormally low price', use their offer price (total price from the summary inventory), not their 'comparative price' from a TCO formula or award criterion score. And if you attack on grounds of substantial irregularity because the winning bidder still 'needs to develop or adapt', first read carefully whether the specifications do not in fact provide for a combination of existing solution + adaptation. Specifications that mention 'be compatible with platform X' AND 'contractor shall inform itself about our criteria' precisely open that door.
Ask yourself
You are about to challenge an award on abnormal pricing. First check: are you comparing with the offer price in the inventory or with the comparative price from the award criterion (TCO, weighting factors, etc.)? Only the first works. Second check: is it a framework agreement? Then the estimate is in any event a less useful reference. Third check: are you including your own offer in the average calculation? Pull your own offer out of the average — if you were the highest, you most likely have a phantom abnormality.
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 →