A 1.33-point gap on Defence’s two patrol vessels — and Ocea tries to recalculate its own tender after the fact
After the Belgian Ministry of Defence awarded the purchase of two Ready Duty Ships for the Naval Component to the French yard Socarenam on 7 December 2012, the equally French yard Ocea attacked four technical scores under extreme urgency — cabins, speed, bridge visibility angle and roll angles — but the Council of State dismissed the application because each of those criticisms amounted to rereading the specification in its own favour or to figures that were not in its tender, and because the last limb was worth only 1.2 points out of 100 while the total gap between the two tenders was 1.33 points.
What happened?
The Ministry of Defence wanted to buy two patrol vessels for the Belgian Naval Component, so-called Ready Duty Ships. For this supply contract it chose the negotiated procedure with publication. The call for candidates appeared in the Bulletin of Awards on 12 July 2012 and in the Supplement to the Official Journal of the European Union on 14 July 2012. Of the nine requests to participate, seven were selected; the specification, reference MRMP-N/P12ZPOOZ, was sent to the selected firms on 3 September 2012. On 23 October 2012 six tenders came in, including those of the French yards Ocea and Socarenam. An award report of 12 November 2012 proposed awarding the contract to the most advantageous regular tender, that of Socarenam. The Council of Ministers approved the proposal on 7 December 2012 and the Minister of Defence adopted the reasoned award decision the same day. Ocea was notified on 10 December 2012 and lodged an application for suspension under extreme urgency on 24 December 2012. The case was heard on 22 January 2013; Socarenam applied to intervene on 15 January 2013, which was allowed as the beneficiary of the contested contract. Ocea raised a single plea in four limbs, each directed at the points awarded in the overall evaluation table annexed to the reasoned decision. Its common thread: the contract documents contained contradictions, and article 90 of the Royal Decree of 23 January 2012 on defence and security contracts required the authority to resolve those contradictions in the tenderer’s favour. The first limb concerned the number of persons per cabin. Annex F of the specification stated 1.38 in one place and 1.83 in the evaluation table of that same annex. Ocea had relied on 1.83: 22 crew members divided by its 12 cabins gives exactly 1.83, which in its view should have produced 10 out of 10 instead of 4.89 — enough to overtake Socarenam. The Council of State found that Defence had used 1.83 as the upper bound of the criterion, the value producing the maximum score after linear interpolation, so the dispute over the interpretation of the clauses could be set aside. The division itself mattered more. Specification C1-353 stated that preference goes to the lowest possible number of persons per cabin, with priority for the basic crew and disregarding the two single cabins and the three double cabins. The 22 crew members therefore had to be divided by the cabins available to them, not by all the ship’s cabins: seven of twelve for Ocea, eight of thirteen for Socarenam. Including those five imposed cabins in the divisor, the Council held, amounts to denying the clause. The limb was not serious. The second limb concerned the maximum speed in sea state 4. Ocea argued that the documents did not make clear whether this was an average speed to be maintained for four hours or a minimum speed, and claimed in its application that its vessels reach 20.5 knots — worth three points instead of zero. Point C1-115 of the specification was not ambiguous, however: the maximum speed is at least 20 knots and must be attainable in sea state 4 for at least four consecutive hours. Ocea identified no passage of the contract documents referring to an average speed. And its own tender stated 20 knots, which scored zero. The Council did not see how the authority could have substituted 20.5 knots for those 20. Not serious. The third limb concerned visibility from the bridge. Ocea had stated 262°, including the obstruction caused by the window mullions; without them it would be 298°. It argued that a wheelhouse of about 7.4 metres requires some 28 mullions and that the beneficiary’s 10 out of 10 was therefore impossible. Socarenam replied that its own wheelhouse has sixteen mullions. The Council found that Ocea supported its claim about the 28 mullions with no document whatsoever, that Socarenam’s tender stated a viewing angle of 325°, and that the other tenderers’ tenders also contradicted the claim. Not serious. The fourth limb concerned roll angles. Ocea had stated 16.54° and argued that Defence had disregarded its active stabilisation system, which reduces roll angles by 40 %, so that 9.92° was the correct value. Yet the specification imposed that stabilisation system — it had to work between 2 and at least 6 knots and reduce significant roll angles by at least 40 % at 6 knots and a significant wave height of 2 metres — so Ocea should have factored that in when completing its own tender. The Council did not even need to address this: Ocea did not state what effect a possible miscalculation would have on the ranking. The criterion was worth 1.2 points out of 100, while the total gap between the tenders was 1.33 points. The limb was inadmissible. The Council admitted Socarenam’s intervention, dismissed the application for suspension under extreme urgency, kept all tenderers’ tenders outside the parties’ knowledge at that stage, had the judgment served by fax under article 3, § 1, second paragraph of the Royal Decree of 5 December 1991, and put the costs, fixed at 300 euros, on Ocea.
Why does this matter?
The judgment is a sober manual on what an attack on technical scores can and cannot be. Ocea did what many unsuccessful tenderers do: it recalculated its own tender with the formulas from the specification and arrived at better figures. But on each of the four points that exercise ran into the same wall: the score is calculated on what the tender says, read as the specification prescribes, not on what the tenderer later means to have said. The sharpest passage is the one on speed. Ocea had entered 20 knots and invoked 20.5 in its application. The Council puts it tersely: one does not see how the authority could have replaced 20 knots with 20.5 on the basis of the tender. A tenderer who enters a technical value too low cannot repair that mistake by citing a more favourable figure in the proceedings — the authority may and must stick to the tender. The same goes for the roll angles: the stabilisation system with its 40 % reduction was in the specification, so it was for Ocea to build that effect into the value it stated. The judgment also puts the argument from contradictory contract documents in perspective. There was a discrepancy in annex F — 1.38 against 1.83 — and article 90 of the defence decree allows it to be read in the tenderer’s favour. But that figure turned out to be no breaking point at all: 1.83 was the upper bound of the interpolation and was applied identically to everyone. A contradiction in the documents yields something only when it actually affected the assessment of the tenders. Finally, the arithmetical discipline of the fourth limb. The gap between the first and second tenders was 1.33 points out of 100; the contested criterion was worth 1.2. Even total success on that point would not have reversed the ranking, so there was no interest. Anyone attacking scores under extreme urgency must therefore show not only that the calculation was wrong, but that correcting it actually puts them first. That is an exercise that begins in the scoring table, not in the pleadings.
The lesson
If you are a tenderer, the lesson starts before any appeal: enter every technical value in your tender as the specification defines it, and apply the imposed corrections yourself. Ocea stated 20 knots and pleaded 20.5; it stated a roll angle of 16.54° while the specification imposed a stabilisation system reducing roll by 40 %. Both figures were then beyond repair. If you contest a score afterwards, first check whether the correction really lifts you above the beneficiary: here the contested criterion was worth 1.2 points out of 100 while the gap was 1.33 points, and that alone made the limb inadmissible. If you want to invoke a contradiction in the contract documents, raise it before submitting your tender if at all possible, and in any event show that it affected the assessment — a discrepancy resolved identically for all tenderers gets you nowhere. And support every technical claim with documents: the assertion that a 7.4-metre wheelhouse requires 28 window mullions collapsed because nothing was attached and the competitors’ tenders showed the opposite. If you are a contracting authority, the judgment confirms the value of an explicit evaluation method. Defence had fixed the upper bound of each technical criterion and the linear interpolation in advance and could redo the calculation figure by figure at the hearing. Do make sure your documents are internally consistent: the discrepancy between 1.38 and 1.83 in the same annex had no consequences here, but that was luck, not drafting.
Ask yourself
Have you entered every technical value in your tender according to the definition in the specification — including the corrections the specification itself imposes, such as the 40 % reduction from the stabilisation system here? Can you show that the score you contest actually places you first once corrected, or does the gap in the ranking remain larger than the weight of the criterion? Did you raise the contradiction in the contract documents before submitting your tender, and can you show that it genuinely affected the assessment of the tenders? Does every technical assertion in your application rest on a document in your file? And as an authority: does your evaluation annex state one and the same limit value per criterion, and can you reproduce the interpolation for every 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 →