Iveco challenges DAF's certification on the defence contract — while Iveco itself regularised three items of its own bid
The Council of State rejects Iveco's annulment action against the award of a defence contract for 879 trucks to DAF Trucks: a EURO III certificate based on UNECE Regulation No. 49 is equivalent to the EC type-approval abolished in 2006, and Iveco has no standing to challenge the regularisation of DAF's bid because it itself was allowed to adjust its own bid during negotiations on essential requirements.
What happened?
In January 2020 the Belgian Minister of Defence launched a negotiated procedure with publication for a major defence contract: 636 light trucks, 243 heavy trucks, plus an open multi-year contract for technical support. Nine candidates, eight selected. The specifications (MRMP-L/PN° 19LP101) required, as an '[I]' indispensable condition, that diesel engines comply with the EURO III emission norm under Directives 70/220/EC, 88/77/EC or 2005/55/EC. A '[D]' requirement obliged bidders to attach a certificate. On 26 June 2020 seven initial bids were submitted. Negotiations took place between 10 and 21 August 2020, followed by BAFOs on 25 September 2020. On 9 December 2020 the contract was awarded to DAF Trucks (75.46/100) over Iveco (70.74/100). Iveco challenges: DAF submitted no EC EURO III type-approval but certificates based on UNECE Regulation No. 49, dated 30 August and 24 September 2020 — after the initial bid deadline. The Council of State had already rejected the suspension (judgment 249.914 of 25 February 2021) and confirms this line in the annulment procedure. First branch of the first plea (irregularity of DAF's bid): unfounded. EC EURO III type-approval has not been obtainable since 2006 — the underlying directives have been repealed. Annex IV part II of Directive 2007/46/EC provides that a type-approval under UNECE regulations is equivalent to an EC type-approval; for diesel engines this annex explicitly refers to UNECE No. 49. DAF's test data (MX-11 and MX-13) show compliance with EURO III without reaching the stricter EURO IV (NOx 4.8/4.6 g/kWh vs. EURO III 5 and EURO IV 3.5; CO 0.6/0.5 vs. 2.1/1.5; etc.). Article 7 §2 of the Royal Decree of 23 January 2012 enshrines the right to equivalence and Article 8 §1 prohibits technical specifications that obstruct competition — which would occur if proof were required that can no longer actually be obtained. Second branch (DAF supplied certificates only after the 26 June BAFO deadline, so bid is irregular): inadmissible for lack of standing. The confidential file shows Iveco itself had to adjust its own initial bid during negotiations on three '[I]' requirements (IK RADIO 2 offered as an option although not permitted; dimensions of IK RADIO 1 & 2 and IK NETWORK not matching specs — lines 35, 37, 38 of the confidential file), plus two more '[I]' points on lines 23 and 72. Article 114 §2 of the Decree allows negotiations to align bids with specifications, but — as the Court of Justice held in Nordecon (C-561/12, 5 December 2013) — does not allow regularising a bid that fails to meet an essential condition. Both parties thus profited, contrary to Article 114, from negotiations to iron out irregularities. Iveco cannot complain that DAF did so, since it did so itself. The mere prospect of a full re-procurement ('new chance') does not constitute standing. Second plea (the sub-sub-criterion 'cost of a fictitious scenario' was unrelated to the contract's object): also inadmissible for lack of standing. The scoring shows that neutralising this element does not reverse the ranking: Iveco would score 31.11/54 vs. DAF 34.67/54 (instead of 30.17 vs. 34.41). The attack on the specifications themselves is in any event inadmissible because the 60-day period (Art. 55 §2 of the 17 June 2013 Act on legal protection) had expired, but irregularity of the specifications may still be invoked as a ground against the award decision (Labonorm line, 152.173). Action dismissed, Iveco bears the costs.
Why does this matter?
Two lessons in one judgment. For authorities drafting technical specifications: a reference to a norm that can no longer be certified in practice is as problematic as a reference to a specific brand — it creates an obstruction to competition, and the Council of State backs the pragmatic application of the equivalence principle. For bid managers the second lesson bites harder: if during negotiations you regularise your own bid on essential requirements, you lose the moral and legal standing to accuse the winner of having done the same. The 'I would have another chance in a re-procurement' argument is consistently rejected when your own bid has the same vulnerability.
The lesson
When preparing an action against an award in a negotiated procedure, first check your own negotiation record thoroughly. Did the authority send you clarification, adjustment or correction requests on essential ('[I]') points? Did you have to revise your bid to become regular? If yes, your leverage to attack the winner's regularisation has largely evaporated — Article 114 of the Placement Decree does not protect anyone selectively. And as a contracting authority: never reference in your specifications a norm or certification without first verifying that it can actually still be obtained today.
Ask yourself
For bidders considering litigation against an award: did the authority during negotiations ask you to adjust your bid on one or more '[I]' items? If so, you cannot use that same regularisation against the winner — you stand on equal footing for admissibility. For contracting authorities: does your specification reference a norm predating 2010? Check whether a current certificate under that norm is still obtainable, or explicitly accept equivalence with modern UNECE or ISO standards.
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 →