Lowest bidder on 19 of the 24 mowing lots, but eight workers: Antwerp was entitled to exclude Algemeen Groenbeheer Baart, and dropping lots afterwards does not save the tender
Algemeen Groenbeheer Baart bid for all 24 lots of Antwerp’s 2008-2010 mowing contract and was the cheapest for 19 of them, but the city excluded it because eight experienced workers and five mowing machines were not enough; the Council of State dismisses the annulment action: the selection criteria in the specifications count as minimum requirements, capacity may be assessed against all the lots bid for, and an unsigned letter sent after the opening to drop nine lots changes nothing.
What happened?
In early 2008 the city of Antwerp launched a public tender for the mowing works across its entire territory in 2008, 2009 and 2010, for city and neighbourhood maintenance, green spaces and cemeteries (specifications no. 2008/8055). The contract was published in the Bulletin der Aanbestedingen of 31 January 2008 and divided into 24 lots; bidders could bid for one or more lots. The specifications contained three selection criteria: references in green-space maintenance, the number of employees ‘in relation to the maintenance to be carried out’, and the mechanical equipment, with make, type and characteristics. The surface area per lot and the number of mowing rounds were set out in the annexes and the inventory. At the opening on 5 March 2008, ten bidders had submitted tenders. Algemeen Groenbeheer Baart BVBA (AGB) from Lommel bid for all 24 lots and offered discounts for combining certain lots. On 12 March 2008 the competent official informed AGB that, on a first calculation, it was the lowest bidder for 18 of the 24 lots, but that performing them would ‘far exceed’ its capacity; he asked it to substantiate its staff and machinery with figures and invited it to a meeting. On 13 March AGB sent an unsigned letter stating that it waived lots 1, 2, 3, 11, 14, 20, 21, 22 and 23, because with lots 4, 5, 6, 7, 8, 9, 12, 16, 17 and 18 it had reached its maximum capacity. On 20 March the city asked for an overview showing that AGB could handle those ten lots; AGB provided it the same day. The evaluation report of 31 March 2008 and the board’s decision of 11 April 2008 nevertheless excluded AGB. Its references concerned smaller works not comparable to the scale of this contract. With eight experienced workers and no subcontractors, AGB could not handle 19 lots, given the surface areas, the mowing frequency of every 7 or 10 days, the spread across the city, the 250 green objects in the city-centre lots 1, 2 and 3 with their parking problems, the removal of cuttings and rainy periods. The machinery — two 2-metre mowers, two 1.5-metre mowers and one 5-metre mulching machine — was insufficient: mowing regime M2 required at least two machines of 12,000 m² per hour, and AGB had one. A fourth ground stated that AGB had bid on average 54% below the second-lowest bidders for the 19 lots. Lot 6 was not awarded but performed in-house in 2008 for lack of budget; the other lots went to various competitors. AGB sought annulment on 20 June 2008. The Council of State first rejected the objection of lack of interest: an unsuccessful bidder has a qualified moral interest, and the question whether AGB stood any chance coincides with the assessment of the plea. On the merits, the Council held that the provisions of the specifications, read together, gave a bidder sufficient insight into the staff and machines needed for the lots it sought. In a contract allowing ‘dozens of combinations’ of lots, the selection criteria in the specifications count as minimum requirements even without figures, and they need not exclude a discretionary assessment by the authority. The Council therefore declined to refer AGB’s proposed preliminary question to the Court of Justice. The argument that selection had to be carried out lot by lot also failed: AGB had bid for all 24 lots, and its letter of 13 March was not a valid modification or withdrawal of its binding tender within the meaning of article 105 of the Royal Decree of 8 January 1996 — that required a duly signed written statement before the opening session. The city was thus entitled to assess the references against 24 lots, and staff and equipment against the 19 lots for which AGB was lowest. The criticism of the abnormally-low-price ground was irrelevant, since the non-selection was already justified on its own. Finally, the correspondence did not show that the city had pushed for a limitation of the tender or made any commitment. The action was dismissed; AGB bears the costs of 175 euros.
Why does this matter?
The judgment addresses a question that arises in every contract divided into lots: how do you assess the capability of a bidder bidding for many lots at once? The Council allows the authority to assess capacity against all the lots a bidder has bid for — or at least against the lots it would win on award — rather than lot by lot. The specifications need not contain a numerical threshold for this: selection criteria asking for staff ‘in relation to the maintenance to be carried out’, read together with the surface areas and mowing regimes in the inventory, suffice as minimum requirements. Equally important is what the judgment says about the tender itself. A bidder cannot unilaterally drop lots after the opening to stay below its capacity limit: a tender binds it, and a modification or withdrawal must take place before the opening session, in writing and duly signed. The Council also points out that, on AGB’s reasoning, the authority would itself have had to choose which lots AGB still got and for which it would be excluded after all — something incompatible with the equal treatment of the other bidders. The judgment was given under the Act of 24 December 1993 and the Royal Decree of 8 January 1996, but its core — capacity belongs to selection, and a tender binds — remains relevant.
The lesson
For bidders: do not bid for more lots than you can demonstrably perform simultaneously with your own staff, equipment and any subcontractors — or make clear in your tender which resources you will deploy for which combination. Whoever bids for everything and is assessed on everything at selection cannot turn back after the opening. A letter dropping lots after the opening session is not a valid withdrawal. List subcontractors or partnerships if your own capacity is tight, and choose references whose scale matches the contract. For contracting authorities: link the selection criteria in the specifications explicitly to the size of the lots (‘in relation to the maintenance to be carried out’) and include surface areas and frequencies in the inventory, so that the criteria can count as minimum requirements. Give concrete reasons for a non-selection, with calculations. And in a procedure without negotiation, do not push for an adjustment of the tender: only ask for clarification and make no commitments.
Ask yourself
As a bidder, can you show for every combination of lots you bid for that your staff and machinery suffice, including for simultaneous performance? Have you included subcontractors or partnerships in your tender where your own capacity is tight? Do you know that after the opening session you can no longer limit your tender by dropping lots, and that a modification or withdrawal before the opening must be in writing and signed? Do your references match in scale the lots you are bidding for? As a contracting authority: do your selection criteria, read together with the inventory, allow a bidder to estimate in advance the capacity it needs for the lots it seeks? Have you reasoned a non-selection with concrete calculations, and avoided prompting a bidder to adjust its tender?
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 →