Rejection of extreme urgency suspension against De Lijn bus transport award West 1 — lot combination is not an essential modification, LEZ decree not yet in force, and price investigation was thorough despite 36.5% price difference
The Council of State rejects the extreme urgency suspension request by BV Ganda Cars against the award of lot 6 (Ghent region) of the contract for exploitation and greening of bus transport by De Lijn (West 1, 18 lots), because none of the three pleas — essential modification of specifications through lot combination, irregularity due to LEZ regulations, and insufficient price investigation despite a 36.5% price difference — was found to be serious.
What happened?
De Lijn (Flemish Transport Company) launched a negotiated procedure with publication under the special sectors regime for the exploitation and greening of bus transport in zone 'West 1', divided into 18 lots. After five successive tender rounds, the board of directors awarded the lots on 22 December 2023. Lot 6 (Ghent-Eeklo-Bruges-Zelzate region) was awarded to NV Bus De Polder (part of a temporary partnership). BV Ganda Cars, which also submitted a tender for lot 6, filed an extreme urgency suspension request with the Council of State. In its first plea, Ganda Cars argued that De Lijn essentially modified the specifications by introducing from the third version the possibility to submit tenders for multiple lots with a price discount. The Council held this was not serious: the possibility of offering a discount for lot combinations flows directly from Article 58 of the Special Sectors Royal Decree 2017 and does not constitute an essential modification. Tenderers must still submit individual bids per lot, and the specification merely made explicit a possibility already contained in the legislation. In its second plea (two sub-parts), Ganda Cars argued the chosen tenderer's offer for lot 6 was substantially irregular due to non-compliance with LEZ (low emission zone) regulations. The Council found that the Flemish Government Decree of 22 September 2023 had not yet entered into force at the time of the contested decision (entry into force scheduled for 27 April 2024). Moreover, the Ghent LEZ regulation provides for individual permits for M3 class I category buses, meaning driving in the LEZ remains possible after 1 January 2027 with a permit. Additionally, lot 6 covers the broader Ghent-Eeklo-Bruges-Zelzate region, with not all bus routes passing through the Ghent LEZ — De Lijn demonstrated with its planning tool Hastus that five of twenty routes fall outside the LEZ. The sub-award criterion 'greening' was also not found unlawful. In its third plea (three sub-parts), Ganda Cars challenged the price investigation. Regarding the 36.5% price difference for lot 6, the Council found that De Lijn had conducted a thorough general price and cost investigation under Article 43 of the Special Sectors Royal Decree, with repeated price clarifications from all tenderers, detailed financial analyses, comparison tables, and a regression analysis. The award report provided concrete explanations: differences in financing models, infrastructure costs, maintenance personnel, and greening pace. Ganda Cars itself acknowledged in its second plea that a fully electric fleet is objectively much more expensive, which helps explain the price difference. With only two tenderers for lot 6, this is not an obvious basis for finding abnormal prices. Since the general price investigation revealed no abnormal prices, De Lijn was not obliged to request a special price justification under Article 44 §1. The unit price investigation and motivation were also found adequate. The suspension request was rejected.
Why does this matter?
This ruling is relevant for three topics. First, it confirms that making explicit the possibility of lot discounts (Article 58 Special Sectors Royal Decree) in a later specification version does not constitute an essential modification — it clarifies an existing legal possibility rather than introducing a new award rule. Second, it clarifies the impact of future legislation on tender regularity: the Flemish Government Decree on low emission zones was not yet in force at the time of the contested decision, and the existence of individual permits for M3 class I buses means that not being 100% zero-emission does not automatically constitute an irregularity. Third, it illustrates how a contracting authority can sustain a 36.5% price difference in the general price investigation (special sectors): through thorough investigation with repeated price clarifications, financial analyses, comparison tables, and regression analysis, with concrete explanations in the award report.
The lesson
Making explicit the lot discount possibility (Article 58 Special Sectors Royal Decree) in a later specification version is not an essential modification, provided individual lot bids remain required. Legislation not yet in force at the time of the award decision cannot serve as a benchmark for tender regularity. For low emission zones: check whether individual permits are available and whether all routes actually pass through the LEZ. Regarding price investigation in special sectors: a large price difference (here 36.5%) does not automatically require a special price inquiry under Article 44 §1 — if the general price and cost investigation (Article 43) yields sufficient explanations, that suffices. Document the price investigation thoroughly with financial analyses, comparison tables, and concrete reasons per lot.
Ask yourself
As special sectors contracting authority: when I allow lot discounts in a later specification version, am I merely clarifying an existing legal possibility or essentially modifying the award rules? Do I assess tender regularity against legislation in force at the time of my award decision, not against future regulations? Have I conducted a thorough general price and cost investigation with concrete explanations for large price differences, documented in the award report and administrative file? As applicant: can my pleas rely on legislation not yet in force? Are the price anomalies I raise not themselves explainable by objective cost differences I acknowledge elsewhere in my arguments?
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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 →