If you want to attack the hardware supplier as competitor for the software running on it, do it in the initial petition — not in the supplementary brief
The Council of State rejects Vigo Universal's annulment action against the award to Timescope for developing a VR application that had to run on 'Timescope Mini' terminals supplied by Timescope: Vigo's strongest arguments — that the award criterion contained an unannounced visual sub-criterion, and that Timescope's competitive advantage from an earlier contract should have been neutralised — only surfaced in the supplementary brief and are therefore late.
What happened?
On 10 August 2021 the City of Namur launched a public procurement for the development and delivery of a VR application presenting the archaeological Grognon site (the confluence of the Sambre and Meuse) at three historical periods: Neolithic, Antiquity, Middle Ages. The application had to run on three 'Timescope Mini' terminals with VR headsets that the city had already purchased from the French company Timescope for the Namur interpretation centre NID. Procedure: negotiated procedure with prior publication. Five award criteria including, weighted 30/100, a 'technical note on the methodology for managing the viewpoints/terminals at the edge of the 3D models'. Four bidders: Vigo Universal, Timescope, N-Zone and a fourth. Award on 9 November 2021 to Timescope (93.90/100, including 30/30 on criterion 2). Vigo second (89, including 20/30) and N-Zone third (88.23, including 25/30). Reasoning on criterion 2: 'Timescope gets full marks for having presented the most substantial technical note, with proposals in the form of visuals exploiting the 3D data made available... Vigo gets the least points due to a very simplified and not detailed technical note.' The Council had already rejected an earlier extreme-urgency suspension (judgment 252,566 of 29 December 2021). In the main proceedings Vigo raises three grievances. First: Timescope got extra points because it is the supplier of the terminals and thus has access to visual material and references that others cannot reach. The Council: the reasoning nowhere states that points were awarded because of Timescope's quality as hardware supplier — this claim is factually unfounded. Vigo tries two new arguments in the supplementary brief: (a) the criterion allegedly contained a 'visual sub-criterion' not announced in the specifications; and (b) Vigo's visual reference work was not taken into account because the authority only looked at intention visuals exploiting the contract's 3D data. Both are late: they should have been in the initial petition, since Vigo knew the decision before filing. Moreover: the Council notes that Vigo's own bid states 'Not having any proper technical sheet on this device, we informed ourselves on Timescope's website' — so Vigo could in fact work without extra specs. Second grievance: Timescope allegedly withheld crucial technical info, while Article III.3.5 of the specifications required collaboration 'between awardee and Timescope'. The Council: that article organises collaboration during the execution of the contract — not during its award. It does not oblige Timescope to supply technical information to competitors before the award. Third grievance: the technical specification imposing integration with Timescope hardware is allegedly a prohibited discriminatory specification (Art. 53 §4 of the 2016 Act). The Council: this specification is justified by the object of the contract — the city already holds this hardware. It therefore falls under the exception of Art. 53 §4 second paragraph 2°. The new argument in the supplementary brief that the authority should have neutralised 'the competitive advantage from a prior contract' (the supply of the terminals itself) by releasing all technical information is late and was not in the initial petition. Action dismissed, Vigo bears the costs: roll fee €400, contribution €44, procedural indemnity €924.
Why does this matter?
Two lessons. The first is procedural: the Council of State is strict on the rule 'exposé des moyens doit figurer ab initio dans la requête'. Arguments you only raise in a supplementary brief are ruled late if they do not relate to public order and you already knew them when filing. A bid manager who litigates must therefore put the strongest arguments on the table from day one — not save them for later. The second is substantive: the issue of 'competitive advantage arising from a prior contract' is real. When an authority first buys hardware and then procures software for it, the hardware supplier has a natural knowledge advantage. In theory that advantage must be neutralised (compare CJEU Fabricom C-21/03 and established Belgian case law on prior contracts). But that argument must be concretely formulated in the petition and linked to concrete information withheld. Vague complaints of 'unfairness' do not carry the day.
The lesson
If you are considering an action against an award where the winner was also the supplier of a prior contract, note this checklist before filing. One: what concrete technical information did you need to make a full bid? Name it per item. Two: did you formally request that information during the tender (via the e-procurement forum, by letter)? Save that request. Three: if not, explain why you objectively needed it and could not reconstruct it yourself. Four: include these elements in your initial petition — not in a later supplementary brief. If you do not do this, you will trip on the procedural filter and never even reach the merits of the discrimination claim.
Ask yourself
In your petition, have you expressly identified (a) which concrete technical information you needed, (b) that you formally requested it from the authority or hardware supplier, and (c) that the information was refused or not provided? If one of those three is missing, or if you want to add them only in a supplementary brief, your plea is on thin ice due to the exposé des moyens rule.
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 →