Speed cameras in Wallonia: a live software demo after the submission of offers is not prohibited in an open procedure, as long as the offer itself does not change — action by Equans, Sensys Gatso and Macq against the award to Jacops dismissed
Equans, Sensys Gatso Netherlands and Macq challenged the award of two lots of the Walloon central purchasing arrangement for speed cameras to Jacops because 10 of the 100 points depended on a live demonstration of the management software after the submission of offers, but the Council of State holds that such a proof of concept only breaches the principle that offers cannot be altered if it leads to a modified offer that is taken into account in the award — which is not shown here — and that no minutes of the demo were required, although it first accepts, unlike at the suspension stage, that an irregular award criterion always harms the unsuccessful bidders, even if disregarding it would not change the ranking.
What happened?
The Walloon Region set up a central purchasing arrangement for the supply and installation of speed cameras on the Walloon road network (specifications no. MI-08.03.03-21-3358), divided into three lots: fixed cameras for instantaneous speed (lot 1), average speed checks (lot 2) and red-light cameras (lot 3). One award criterion, ‘supply of the management software’, carried 10 of the 100 points and was assessed entirely through a ‘real-time technical presentation (POC)’ of the software before the evaluation committee, the date of which would be communicated after the offers had been submitted. Any bidder scoring below 6/10 would be excluded. Point II.9.2 of the specifications described in detail what the software had to do — from two-factor authentication and a dashboard of all alarms to a tamper-proof log and hosting in a European data centre meeting ISO 9001 and ISO 27001 — and asked bidders to attach a detailed description and a user manual to their offer. Equans (then still Fabricom) and Sensys Gatso Netherlands submitted an offer for lot 1 as the temporary association FlashRadar2Wal; Equans and Macq did so for lot 2 as ASRadar2Wal. The demonstrations took place on 22 June 2022. For lot 1, the nine-member committee noted that FlashRadar2Wal worked ‘essentially’ from a PowerPoint rather than live, that the integration of the camera offered into Macq’s M³ software was still ‘under development’ and that the link between alarm tickets and intervention planning was manual: 6/10. Jacops showed everything live with its own .NET software and received 10/10. For lot 2, ASRadar2Wal scored 9/10 and Jacops 8/10, because Jacops did not yet have average-speed installations of its own to demonstrate the communication. On 14 September 2022 the Walloon Region awarded all three lots to Jacops. In an extreme-urgency suspension judgment (no. 254.854 of 24 October 2022) the Council of State declared the action against lots 1 and 2 inadmissible: the applicants had not shown that the alleged illegalities harmed them, since even without the POC criterion or with 10/10 they would still have come second. The Walloon Region withdrew the award of lot 3 on 12 October 2022 and later awarded that lot to FlashRadar2Wal; that new award was suspended by judgment no. 256.537 of 16 May 2023 and annulled on the same day as this judgment (no. 267.640). In the annulment proceedings, brought on 14 November 2022, only the first plea, directed against lots 1 and 2, therefore remained. On admissibility, the Council now follows the auditor. Equans and Sensys Gatso have an interest in lot 1, Equans and Macq in lot 2; a company that did not bid for a lot has no interest in it. The applicants could rely on the illegality of the specifications against the award decision without challenging the specifications themselves (Labonorm judgment). Under the Act of 17 June 2013 they need not show a manifest error of assessment either. And, referring to the EVN judgment of the Court of Justice: a contracting authority may not simply disregard an irregular award criterion, so the irregularity of such a criterion ‘necessarily’ harms the unsuccessful bidders, even if neutralising it does not change the ranking. For the second limb, the 6/10 threshold also matters: a different assessment could have led to the exclusion of Jacops. On the merits, however, the applicants fail. A presentation of (an aspect of) the offer is not in itself contrary to equality or transparency in an open procedure; it only is when it leads to a modification of the submitted offer and the authority takes that modification into account. That was the situation in judgments no. 234.487 (2016) and no. 204.259 (2010), but not here. The criterion was admittedly worded ‘ambiguously’, as if the presentation itself were scored, but read together with point II.9.2 and with the reasons for the decision, it was clear that the committee tested the software from the written offer ‘in operation’ against the requirements of the specifications. The applicants did not show that new elements had crept into the assessment. The Council refuses the requested preliminary reference: it in fact asked the Court to decide the case itself and started from the incorrect premise that the presentation itself was scored. Separate minutes of the demonstration were not required either: no rule imposes them, and the case law on negotiated procedures (judgment no. 242.755) cannot be transposed to an open procedure, in which the offer cannot evolve. The Walloon Region had moreover stated that it did not take into account the PowerPoint the applicants sent afterwards on 23 June 2022. The Council holds that there is no longer any need to rule on lot 3 and dismisses the action for the rest. Although the applicants gained something from the withdrawal of lot 3, the Council regards the Walloon Region as the successful party: the debate concerned only lots 1 and 2. The applicants bear the court fees of 1,200 euros, the contributions of 46 euros and a procedural indemnity of 770 euros; Jacops bears its intervention fee of 150 euros and is refunded 150 euros it had mistakenly paid twice.
Why does this matter?
Live demonstrations of software, a prototype or a working solution are commonplace in modern procurement, and in an open procedure they seem to clash with the prohibition on altering offers after submission. This judgment draws the line clearly: the demo itself is not the problem, what is done with it is. If the bidder shows something that was not in its offer, and the authority rewards it, the principle that offers cannot be altered is breached (as in the IDEA case of 2016). If the authority uses the demo to check whether what is on paper actually works — and penalises what turns out not to work — it stays within the rules. The judgment is also important for admissibility. At the suspension stage, the Council had declared the action against lots 1 and 2 inadmissible because deleting the contested criterion did not overturn the ranking. It now accepts, on the basis of the EVN judgment, that the illegality of an award criterion necessarily harms every unsuccessful bidder: the authority cannot disregard the criterion after the fact and would have to restart the procedure. That widens access to the court for bidders who target a criterion rather than their own score. Finally, the judgment confirms that the reasons in the evaluation report, signed by the full committee, can suffice in an open procedure as the record of a demonstration — separate minutes are not a legal requirement.
The lesson
For contracting authorities: a proof of concept after the submission of offers is possible, but word the criterion so that it is clear what you are assessing — the quality of the software in the offer, tested in operation against the requirements of the specifications — and not ‘the presentation’ as such. The Walloon Region’s approach held up because point II.9.2 listed the requirements precisely and asked for a written description and manual, and because the reasons consistently referred to those requirements. Record in the evaluation report specifically what each bidder did and did not show live, have it signed by the whole committee, and keep documents sent after the demo out of the assessment. Never reward features that only surface during the demo. For bidders: a demo is not an opportunity to adjust your offer, but a test of what you have already promised. If you must show live that your software can do something, you must be able to do it live; a PowerPoint, or software other than the software offered, costs points. If you want to challenge a criterion itself, know that you can do so through the award decision and that you need not show you would have won without that criterion — but on the merits you must then prove that the demo changed the offer.
Ask yourself
Do your specifications make clear that the demonstration serves to test the software in the written offer, and not to score the presentation itself? Do the specifications list the functionalities checked during the proof of concept, and require a written description and manual with the offer? Does your evaluation report record for each bidder what was and was not shown live, and is it signed by all committee members? As a bidder, have you already described in your offer everything you want to show during the demo — and can you show it live with exactly the software you are offering? Do you realise that an unlawful award criterion harms you as an unsuccessful bidder, even if disregarding it would not change the ranking? If you claim that a demo changed the offer, can you point specifically to the new element that was taken into account in the assessment?
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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 →