An American crash-test standard in a Flemish specification is not a prohibited indication of origin: Stuer-Egghe loses the fight over its crash cushions, but the award remains up in the air
Stuer-Egghe, a manufacturer of crash cushions declared technically irregular by the Flemish Region because its test vehicles weighed 329, 344 and 331 kg where Standard Specification 250 allows at most 200 kg, argued that the reference to the American standard NCHRP350 distorted competition and that its TNO reports proved equivalence; the Council of State dismissed the extreme-urgency application against the rejection because the specification sets concrete performance requirements and designates no brand or origin, so the equivalence rule of article 83bis, § 4 does not apply — but reopened the debate on the award to Arisco, which had been suspended that same day in the Traffic Services case.
What happened?
For the hire of crash cushions with driver-operator on East-Flemish regional roads and motorways (specification no. 1M3D8H/11/52, announced on 5 and 7 October 2011) the Roads and Traffic Agency received seven tenders. The specification made applicable Standard Specification 250 version 2.2, service orders MOW/AWV/2007/8 and MOW/AWV/2009/16 and ‘the standard NCHRP350 TL3-50, 51, 52 and 53’. Stuer-Egghe tendered itself and also supplied the crash-attenuation systems with which D&S Kraanverhuur and, according to it, A. Audenaert and Fero Signalisatie tendered; Traffic Services offered Verdegro systems and Arisco an American system. Stuer-Egghe attached to its tender a note arguing that NCHRP350 is not a standard within the meaning of public procurement law but an American series of recommendations (National Cooperative Highway Research Program), tailored to the American road network and without force in the Belgian legal order. After the request of 25 November 2011 to supply the test reports, it submitted certificates from the independent testing laboratory TNO dated 13 January 2010, 19 October 2011 and 29 November 2011, plus four TNO test reports, noting that these had been known to the Expertise Verkeer en Telematica division since July 2008 and that it was approved in the Netherlands, Norway and Sweden. The award report declared five of the six bidders technically irregular. For Stuer-Egghe the reasoning was concrete: the attached weights of 329, 344 and 331 kg exceed the maximum of 200 kg allowed for the alternative test vehicle, and in test F 034401 the test mass was 1,952 kg, below the minimum of 1,955 kg. Only Arisco remained; on 21 December 2011 it received the contract for 1,825,890 euros including VAT, 46.4% above the estimate. Stuer-Egghe filed an extreme-urgency application on 25 January 2012. Arisco was allowed to intervene; D&S Kraanverhuur was not, because its manager had decided to bring proceedings itself (case XII-6820, judgment no. 218.183) but not expressly to intervene in these proceedings. The first plea — an unstructured argument of six densely written pages, about which the Council remarks that such drafting ‘shows little understanding of the possibilities of the judge in extreme-urgency proceedings’ — relied on article 83bis, §§ 3 and 4 in conjunction with article 85 of the Royal Decree of 8 January 1996: NCHRP350 would favour American products, and the TNO reports would demonstrate equivalence. The Council did not follow. It is not shown prima facie that the specification, through its reference to Standard Specification 250, the service order or NCHRP350, designates ‘brands, patents or types, or a specific origin or production’; Stuer-Egghe itself argues that its products comply, and service order MOW/AWV/2009/16 precisely contains an adjustment for the European market: because the 2000 P Pick-up Truck described in NCHRP350 is hardly present here, a common European vehicle may serve as alternative test vehicle, provided it meets the listed technical characteristics. That Stuer-Egghe’s cushions fail those test conditions does not prove that non-American products cannot meet them. Article 85 therefore does not seem applicable. As regards article 83bis, the Council held that the specification does not use a national technical specification within the meaning of § 3, a), but concrete performance requirements within the meaning of § 3, b): the cushions must be tested according to specific technical characteristics. The equivalence rule of § 4 applies only to references under § 3, a) and is therefore not applicable here — whereas Stuer-Egghe built its entire argument on it. The Council also noted that it did not dispute the excess over 200 kg or the insufficient test mass. The first plea was not serious, so the application against the declaration of irregularity was dismissed. As an irregular bidder, Stuer-Egghe then only had an interest in the suspension of the award if it showed that the contract could not be awarded to anyone; its second plea (award for four years) and third plea (acceptance of Arisco’s tender despite a premature opening) could lead to that. But by judgment no. 218.184 of the same day, in the Traffic Services case, the Council had already suspended the award to Arisco. So as not to revisit that decision while safeguarding Stuer-Egghe’s interests, the Council reopened the debate on the award: it will be decided only after the annulment action in the Traffic Services case is settled or the suspension has ended earlier. The intervening parties each bear half of the costs of the interventions, set at 250 euros.
Why does this matter?
The core of this judgment is the distinction drawn by article 83bis of the Royal Decree of 8 January 1996 (today found in article 53 of the Act of 17 June 2016) between two ways of formulating technical specifications. Whoever refers to standards or technical approvals must add ‘or equivalent’ and accept equivalent solutions if the bidder demonstrates them by any appropriate means. Whoever instead sets performance and functional requirements — a test vehicle of at most 200 kg, a test mass of at least 1,955 kg — may demand that they be met in full; the equivalence rule then does not apply. A bidder who builds its defence on ‘my product is equivalent, look at the TNO reports’ is beside the point as soon as the specification formulates a measurable requirement its product does not meet. The judgment also teaches that a reference to a foreign standard is not enough to invoke article 85: the ban on indications of origin requires that certain undertakings be favoured or eliminated, and that is not shown when the specification itself allows a European alternative test vehicle and the applicant claims that its own products comply. Finally, the judgment illustrates the procedural consequences of parallel actions against the same award. Because the Council had already suspended that award in the Traffic Services case, it could not rule again on its enforceability here; it opted to reopen the debate, so that Stuer-Egghe does not lose its pleas against the award but they come up only later. For anyone reading the Traffic Services case alongside, the contrast is striking: the same authority, the same award report, but for Stuer-Egghe the reasoning contained concrete weights and test masses and for Traffic Services only a standard sentence — resulting in a dismissal for one and a suspension for the other.
The lesson
For bidders: before invoking ‘equivalence’, read how the specification formulates its technical requirements. With a reference to a standard, you have the right to demonstrate an equivalent solution with test reports from an accredited laboratory; with a concrete performance requirement (a maximum weight, a minimum test mass), your product simply has to meet it, and no certificate helps if the figures are wrong. If you want to attack a specification for imposing a foreign standard, show concretely which undertakings are thereby excluded — and do not say at the same time that your own product complies. Keep your extreme-urgency application structured too: in extreme urgency the Council only deals with the complaints it can quickly link to a breached rule. Finally, do not forget the formalities of intervention: a decision by the company body to bring its own action is not a decision to intervene in a competitor’s case. For authorities: formulate technical requirements as measurable performance requirements where you can, provide a European alternative where a foreign standard relies on a non-European test environment, and put the measured values in the reasoning — exactly what made the difference in this case between a dismissal and a suspension.
Ask yourself
Does the specification refer to a standard ‘or equivalent’, or does it set measurable performance requirements — and do you know that your right to prove equivalence applies only in the first case? Does your product meet the figures the specification asks for, or are you hoping that a certificate from an accredited laboratory will make up for the shortfall? Can you show concretely that a foreign standard excludes certain undertakings, or do you undermine that argument yourself by stating that your products comply with it? Is your application structured so that the judge in extreme urgency can immediately link each complaint to a breached provision? If you intervene in the case of a fellow rejected bidder, do you have an express decision of your company body to that effect? And as an authority: are the measured values on which your rejection rests stated in the decision itself?
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 →