‘Shorter than the maximum period in article 28’ — but article 28 set no period: the Mons public social welfare centre’s HVAC award falls on an unusable award criterion
When awarding the HVAC and plumbing lot for a new care home in Havré, the public social welfare centre (CPAS) of Mons rewarded bidders who offered to work ‘faster than the maximum period of article 28’, but that article laid down no period at all and the specifications gave no start or end date for the lot, so the Council of State holds the ‘execution period’ criterion inoperative and annuls the award to Druart — after first explaining how a timely request for reasons keeps the appeal period open and why the ‘finding of non-existence’ of the first award was simply a withdrawal.
What happened?
The CPAS of Mons was building a new 221-bed care home in Havré and put lot 2 — HVAC, plumbing, fire protection and oxygen distribution — out to tender by call for tenders, published in the Bulletin des adjudications of 16 October 2007. The specifications set five award criteria: investment cost (70 points), technical data sheets (10), execution period (5), technical value (10) and quality of the schedule (5). For the execution period, ‘any proposals by the bidder to perform the contract within a period shorter than the maximum period laid down in article 28’ would be rewarded. Five offers were opened on 23 November 2007; four bidders were selected. The engineering firm TPF Engineering analysed them. At 2,768,216.95 euros Delta Thermic was the cheapest and received the full 70 points for price, but it proposed a reduction of 20 working days (1.43 points), whereas Druart promised to finish on 23 December 2008 — according to the firm a gain of 63 working days (4.50 points) — and Axima Contracting on 15 December 2008 — 70 working days (5 points). Druart (5 points) also scored better than Delta Thermic (2 points) for the schedule. Final ranking: Druart 93.23, Axima 90.06, Delta Thermic 86.81 and Limpens 41.59; Druart was proposed for 2,807,122.51 euros excluding VAT. The CPAS’s standing committee awarded the contract on 24 December 2007. Delta Thermic was informed on 28 December 2007 that its offer had not been chosen, requested the detailed evaluation report and the reasoned award decision on 7 January 2008, and finally received the report on 22 January 2008. An amended version of the report (4 February 2008) did not change the ranking. On 21 March 2008 Delta Thermic brought an action for annulment. On 8 May 2008 the social welfare council then found ‘the non-existence’ of the standing committee’s decision — the committee lacked competence — and re-awarded lots 2 and 3 in line with TPF’s proposal. Delta Thermic only learned of this through the defence brief notified to it on 15 July 2008, and brought a second action on 12 September 2008. The Council of State joined the two cases. It held the first action timely: the ex officio information of 28 December 2007 started the appeal period, but Delta Thermic had requested the reasons within a reasonable period of in principle fifteen days, which interrupted it. A new sixty-day period only began the day after receipt of the report, so the last day, Saturday 22 March 2008, moved to Monday 24 March. The ‘finding of non-existence’ of 8 May 2008 was in reality a withdrawal pending the proceedings: the first action therefore lost its object. The second action was also timely, as the period only ran from knowledge via the defence brief. That brief was received on 16 July 2008, so the action of 12 September remained within the period, which expired on 15 September 2008. The Council did, however, refuse to examine the implicit refusal to award the contract to Delta Thermic: annulling it would prejudge the choice of the best offer, which is for the contracting authority. On the merits, the Council upheld Delta Thermic’s first plea. Article 28 of the specifications laid down no maximum period, so bidders could not possibly propose a reduction of it. Nor did the specifications give a start or end date for lot 2. The schedule for lots 1a and 1b (shell and finishing), with ‘screed-embedded services’ by 31 May 2008 and ‘end of works’ on 31 March 2009, was not enough to fix the execution period of lot 2. The ‘execution period’ criterion was therefore inoperative: it made an objective comparison of the offers impossible, in breach of article 16 of the Act of 24 December 1993 and article 115 of the Royal Decree of 8 January 1996. The Council annulled the decision of 8 May 2008 insofar as it awarded lot 2 to Druart and ordered the CPAS to pay the costs of 350 euros.
Why does this matter?
The judgment shows that an award criterion that sounds reasonable in theory — reward whoever works faster — becomes legally unusable once the benchmark is missing. If you want to score a ‘reduction of the maximum period’, you must also set that maximum period; otherwise you are comparing apples and oranges. Here this was particularly acute: Druart and Axima gave a fixed end date, Delta Thermic a number of working days saved, and the engineering firm itself converted those dates into ‘working days gained’ using a schedule that concerned another lot. In a contract divided into lots, where one lot depends on the pace of another, that risk is especially great. The judgment is also instructive on procedure. It confirms that a bidder who requests the reasons within about fifteen days obtains a new appeal period running from their communication. And it makes clear that an authority which, pending the proceedings, declares its own decision ‘non-existent’ and takes a new one is simply withdrawing it: the old action loses its object, but the new decision can in turn be challenged — here successfully. Finally, it is a reminder that the Council of State annuls an award but never itself awards the contract to the applicant.
The lesson
For contracting authorities: if you want to reward a shorter execution period, set a clear maximum period or a fixed start and end date in the specifications, and state how the reduction will be measured — calendar days, working days or as an end date. In a contract divided into lots, that benchmark must apply to the lot itself, not be inferred from the schedule of another lot. A reference to an article that in fact contains no period makes the criterion inoperative and the whole award vulnerable. Have the competent body decide from the outset; declaring an award taken without competence ‘non-existent’ afterwards is a withdrawal and merely shifts the battle. For bidders: when rejected, request the reasons in writing within about fifteen days; that keeps your appeal period open. Keep a close eye on the file even after bringing an action: a new decision taken pending the proceedings must be challenged again. And look critically at criteria without a measurable benchmark — that is often where your strongest plea lies.
Ask yourself
Do your specifications set a concrete maximum period or start and end date for the lot for which you reward a shorter execution period? Do the specifications state how bidders must express that reduction, so that all offers are compared on the same basis? As a rejected bidder, did you request the reasons for the award decision in writing within about fifteen days? Do you know that a new decision taken by the authority pending the proceedings can render your pending action without object and must be challenged separately? Do you realise that the Council of State can annul an award but can never itself award the contract to you?
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 →