Suspension of COCOF maintenance contract award: specifications insufficiently clear on inclusion of existing non-conformities in lump-sum price
The Council of State suspends the award of a contract for maintenance, periodic inspection and repair of HVAC installations of the COCOF to TPF Utilities, because the specifications — read together with the contradictory answers provided by the contracting authority during the procurement procedure — insufficiently defined whether the remediation of existing observations and non-conformities had to be included in the lump-sum price, thereby violating the transparency principle.
What happened?
The Commission communautaire française (COCOF) launched an open procedure for a service contract covering maintenance, periodic inspection and repair of thermal, air conditioning and refrigeration installations in its buildings. COCOF manages a substantial real estate portfolio acquired through successive state reforms, including buildings for education, health, culture and vocational training. Two tenderers submitted offers: SA Equans Services (the previous maintainer of part of the installations) and SA TPF Utilities. The specifications provided for mixed pricing: lump sums per building for maintenance and periodic inspections, hourly rates for repairs, and a reserved sum for spare parts. During the procurement procedure, Equans asked whether the remediation of existing observations and non-conformities noted by certified bodies had to be included in the lump-sum price. COCOF answered unequivocally 'yes'. Equans then requested the certified bodies' reports to estimate costs. COCOF sent some reports that turned out not to be statutory reports and provided insufficient information. Equans submitted its offer with a reservation: it had not been able to price the remediation of existing observations for lack of the requested reports. COCOF considered this reservation a substantial irregularity: it would give Equans a discriminatory advantage and render its commitment to perform uncertain. The contract was awarded to TPF Utilities on 14 December 2023. Equans filed for suspension under extreme urgency. In the first plea, first branch, Equans argued the specifications violated the transparency principle because the subject matter was insufficiently defined: the specifications did not expressly require inclusion of pre-existing non-conformities in the lump-sum price, and COCOF's answers contradicted the specifications. COCOF raised a lateness objection: Equans should have challenged the ambiguity during the procedure. The Council rejected this objection, finding that only the irregularity decision revealed the intended interpretation, and that requiring preventive challenges would undermine effective judicial protection. On the merits, the Council found the specifications violated transparency. The technical description did not expressly impose responsibility for pre-existing non-conformities. The specifications stated the contractor was not responsible for defects outside its contractual obligations. COCOF's answers — confirming existing observations had to be included in the price — contradicted the specifications without qualification. COCOF itself acknowledged that installations had not undergone legally required conformity inspections. The fact that two tenderers read the specifications in two different but each defensible ways confirmed the lack of clarity. The first plea was serious. The balance of interests favoured suspension and execution was suspended.
Why does this matter?
This ruling reaffirms that the transparency principle requires specifications to define the subject matter clearly and unambiguously so all tenderers can bid on equal terms. When answers to tenderers' questions during the procurement procedure contradict the specifications, this undermines the comparability of offers. The Council also confirms that a tenderer is not required to preventively challenge specification provisions during the procedure: the right to effective judicial protection precludes declaring a plea inadmissible solely because it was not raised before the award decision.
The lesson
Define the subject matter and technical requirements in the specifications in clear and unambiguous terms. When answering tenderers' questions, ensure your answers are fully consistent with the specification provisions — contradictory answers create inequality between tenderers interpreting the specifications differently. If you require certain costs to be included in the lump-sum price (such as remediation of existing non-conformities), state this expressly in the specifications and provide tenderers with all information needed to estimate those costs.
Ask yourself
As contracting authority: are the services to be included in the lump-sum price expressly and unambiguously described in the specifications? Are my answers to tenderers' questions consistent with the specification provisions? Do tenderers have all information needed to submit a substantiated price? As tenderer: if the specifications are unclear about the scope of services, have I asked questions and has the ambiguity actually been resolved by the answers?
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 →