Treating all bidders the same can itself be the problem: a restorer needs more inspection than a dismantler
The Council of State annuls the sale of a decommissioned Falcon 900 because Defence refused on-site technical inspection for everyone, while bidders who wanted to restore the aircraft to airworthiness needed that inspection far more than bidders who wanted to dismantle it for parts.
What happened?
In 2020 Belgian Defence decided to sell its Dassault Falcon 900 (with four spare engines and support package) after a previous procedure (17AP006) had yielded no bids for that lot. Estimated proceeds: €850,000. Defence used a negotiated procedure without prior publication, inviting twelve companies. Sole award criterion: highest price. The specification expressly envisaged two types of candidates — those active in 'maintenance or operation of aircraft' and those active in 'maintenance of aircraft parts'. However, it only allowed a 'short visit' on the information day (28 January 2021) while stating that 'a technical inspection of the parts will not be permitted'. All liability for the state of the goods or the accuracy of technical data was excluded. Topline Services, a Luxembourg company wanting to restore the aircraft to airworthiness, asked twice in writing (22 and 27 January 2021) for additional technical inspections. On 28 January 2021 the request was refused orally for all candidates: 'The goods are sold as is, where is and no additional inspections are possible before submittal of the tender.' Five bids were submitted; Topline came last. On 25 May 2021 Defence awarded to Fenix Recycling (a dismantler), then — after a suspension procedure by PartsCare — withdrew that decision on 17 July 2021 and awarded to PartsCare instead, also a dismantler. Topline challenged on equality grounds: restorers and dismantlers are in materially different situations, and treating them identically (no inspection for anyone) unjustifiably equated two categories. A restorer must factor in all repair costs for airworthiness; a dismantler sells parts as they are. Defence raised inadmissibility: the bidder should have complained before opening under clause 7.e (a verbatim copy of Article 81 of the Royal Decree of 18/04/2017). The Council rejected this: clause 7.e contains no forfeiture rule for legality grievances, and a bidder may still invoke the illegality of the specification when challenging the award. The Grossman judgment (CJEU C-230/02) did not apply because the clause had not prevented meaningful participation — Topline only realised afterwards that the lack of inspection made winning practically impossible. On the substance, the Council ruled for Topline: the equality principle (Articles 10-11 of the Constitution) applies even when public procurement law is strictly speaking not applicable — here, the grant of a property right through sale. The principle prohibits not only unjustified differential treatment of comparable situations but equally identical treatment of materially different situations. Topline credibly showed that on-site inspection was necessary to assess all repair costs, and that paper information (logbooks, CoCs) did not replace it. For a dismantler, inspection is less crucial — they sell parts as they are. Defence refused the inspection without objective justification, organisationally easy, and had allowed it in the previous procedure 17AP006. Award to PartsCare annulled.
Why does this matter?
This judgment extends the equality principle in two practically important directions. One: it applies even when public procurement law does not strictly apply (here: a sale of State property). Two: identical treatment of different categories is itself a form of discrimination when there is no objective justification for the uniform approach. For bid managers: if your business case is materially different from competitors' (restorer vs. dismantler, manufacturer vs. reseller, builder vs. renovator) and the specification imposes identical constraints that weigh more heavily on you, you have a real ground. For contracting authorities: uniformity is not automatically a safe choice — sometimes the equality principle obliges you to differentiate.
The lesson
If a clause weighs more heavily on you than on competitors because you don't share their business model, ask explicitly and in writing for the inspection, information or exception. If it is refused without objective justification, that is usable in later proceedings — even if you made no formal reservation when submitting your bid.
Ask yourself
Are there two fundamentally different categories of bidders in the same procedure (restorer/dismantler, supplier/integrator, designer/contractor)? Does the specification impose identical constraints on them (no inspection, same document requirements, same timing)? Does this uniformity concretely harm your category more than the other? Did you signal this in writing to the authority before opening? Did you receive a refusal without objective reason? You have an equality ground.
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 →