EREA/MAAS aircraft arresting systems: technical irregularity confirmed despite identical offer accepted in previous contract
The Council rejects the suspension request against the decision declaring APK-SCAMA's offer for aircraft arresting systems at three military bases irregular, confirming that the automatic braking requirement without manual reconfiguration (specification 6.3) is not met, even though an identical offer was accepted in a previous similar contract.
What happened?
The Ministry of Defence launched a negotiated procedure with publication under Article 25 of the Act of 13 August 2011 (defence and security procurement) for the supply, installation and maintenance of EREA and MAAS systems for the air bases at Florennes (firm tranche), Kleine-Brogel (conditional tranche 1) and Beauvechain (conditional tranche 2). The temporary joint venture APK-SCAMA proposed the BAK-12 ATECH system. After technical evaluation of the BAFO, Defence declared the offer irregular on three grounds. First irregularity (requirement 6.3): the system had to permanently and automatically regulate braking force without prior manual reconfiguration to maximally reduce hook stress. Defence found the BAK-12 system required manual adjustments (mass setting via a needle valve) to optimize braking force for specific weight/speed configurations (F-16 and F-35A). The Council examined three grievances. First grievance (system is automatic): rejected — the criticism was not about the absence of automatic braking, but about the automatic adjustment not maximally reducing braking force. Second grievance (identical offer accepted in 2020 contract): rejected — previous decisions have no peremptory value; each contract is assessed concretely. The reinforced motivation was satisfied as the decision mentioned the precedent and implicitly acknowledged its limitations, explaining the 2020 evaluation had been conducted for an offer whose price was uncompetitive. Third grievance (staff shortage cannot justify irregularity): rejected — staff shortage justified the essential character of the requirement, not the irregularity itself. With the first irregularity confirmed, the Council did not need to rule on the other two (8.3 — mechanical vs. hydraulic transmission; 15.1/15.2 — insufficient F-35A certification).
Why does this matter?
This ruling clarifies that the contracting authority is not bound by its regularity decisions in previous contracts, even similar ones — each contract is assessed concretely. When deviating from a prior assessment, reinforced motivation applies, satisfied when the decision mentions the precedent and explains the reasons for divergence. The authority has broad discretion to define technical specifications and qualify them as essential.
The lesson
An identical offer accepted in a previous contract creates no acquired rights: each contract is assessed autonomously. When changing a technical assessment, the authority must explain why but need not reach the same result. Reinforced motivation is satisfied when the decision mentions the precedent and explains its limitations. And the reasons justifying a specification's essential character (staff shortage, operational safety) must not be confused with the basis of the irregularity itself.
Ask yourself
Have I concretely assessed each offer's technical conformity independently of previous decisions? When deviating from a prior assessment, have I mentioned the precedent and explained the reasons for divergence? Do I clearly distinguish between the reasons for a specification's essential character and the basis of the irregularity?
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 →