750 kilometres of Walloon roads in a single 16-day measuring campaign: ‘optimising’ the specifications makes your tender irregular — and a letter of confirmation does not fix it
French firm Vectra offered to complete the bearing-capacity measurements of the Walloon road network in a single campaign of about 16 days, whereas SOFICO’s specifications prescribed an annual schedule with quarterly revision — the Council of State found the exclusion for substantial irregularity prima facie lawful, saw no discrimination against foreign tenderers and no conflict of interest on the part of winner CRR-GINGER CEBTP, and dismissed the extreme-urgency application.
What happened?
In September 2011 SOFICO launched a general call for tenders for bearing-capacity studies on the sections of the structuring Walloon road network due for rehabilitation — the measurements underpinning the technical clauses of the works contracts in the exceptional 2010-2015 rehabilitation programme (some 500 sites in an evolving Master Plan). Three tenders were submitted on 3 November 2011. On page 41 of its tender, Vectra described how it would carry out the auscultation of the 750 kilometres ‘in a single measuring campaign’ of roughly 16 days, using a curviameter and a falling-weight deflectometer (FWD). Article 69 of the specifications, however, provided that the services would be performed ‘according to an annual schedule drawn up by the contracting authority and revised quarterly’. On 7 February 2012 SOFICO expressly asked whether the tender, including its price and time limit, strictly complied with Article 69; on 15 February Vectra replied laconically that its tender strictly complied with the specifications, without addressing the contradiction identified. On 25 May 2012 SOFICO excluded the tender as substantially irregular — for the deviation from Article 69 and for the pricing of two inventory items — and awarded the contract to the joint venture CRR-GINGER CEBTP. In the extreme-urgency proceedings the Council of State held that Article 69 is clear: even if the quarterly revision is only an option, the mere fact that the authority may use it rules out performance in a single campaign, however small Vectra judged the probability of schedule changes to be. The letter of confirmation changed nothing. The discrimination plea — performance in several campaigns would burden foreign tenderers who must each time transfer equipment and staff — foundered on the objective justification that each road section must be measured shortly before its rehabilitation so that the results remain relevant; moreover, the French participation in the winning combination proved the contrary. There is no room for a preliminary reference to the Court of Justice in extreme-urgency proceedings. The third plea also failed: the fact that the Road Research Centre had contributed to standard specifications (CCT RW99), three extracts of which applied to the contract, does not establish a competitive advantage, and the alleged prior contract for surface analyses turned out to have been performed internally by the Walloon administration. The winner’s tender remained confidential at this stage (business secrecy). The application was dismissed, with EUR 425 in costs for Vectra.
Why does this matter?
The judgment is a warning against ‘optimising away’ specification clauses that are commercially inconvenient. Vectra read the award criterion ‘speed of execution’ as an invitation to squeeze everything into one campaign and counted on the schedule revision remaining a dead letter; the Council dealt mercilessly with that speculation: the mere possibility of a quarterly revision makes a single-block approach contrary to the specifications. Equally important is what the judgment says about the request for clarification: a tenderer who answers a precise question about compliance with nothing but a bare confirmation repairs nothing — and had it adjusted the substance, it would have impermissibly amended its tender. The judgment also plants two useful procedural markers: extreme-urgency interim proceedings do not accommodate a preliminary detour via Luxembourg, and whoever alleges a conflict of interest because the winner contributed to standard specifications must show a concrete advantage — sectoral standardisation committees open to all, whose results are public, do not confer one.
The lesson
For tenderers: take the performance arrangements of the specifications as they stand, even if you find them commercially awkward. Build your methodology and price on the specification scenario — here: several campaigns spread over the year — and fit your efficiency advantage within that framework, instead of speculating that the authority will not use its own flexibility. If you receive a request to confirm that your tender complies, treat it as an alarm bell: analyse the contradiction identified and show concretely why your approach fits the framework — a standard confirmation convinces no one, and more is not allowed, since amending your tender is prohibited. For contracting authorities: a clear performance clause such as a revisable annual schedule, coupled with a documented need (measurements shortly before the works), also survives the European non-discrimination test. And if you fear challenges because a candidate contributed to your standard specifications: as long as those documents are public and equally available to all, you stand strong.
Ask yourself
Does your method of performance match every arrangement in the specifications, or only the reading that suits you best? Have you anywhere in your tender speculated that the authority will not use a reserved possibility — a schedule revision, an option, an extension? Do you answer a request for clarification with an analysis or with a formula? And if you feel wronged because a competitor helped draft standards or standard specifications: can you identify a concrete, non-public advantage — or only a theoretical suspicion?
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 →