65 millimetres too long, 48 too wide: the ‘YES’ tick in annex C does not save Oshkosh’s crashtenders
Oshkosh Corporation duly ticked in annex C of the specification for thirteen crashtenders for the military air bases that its vehicle met every indispensable technical requirement, but the brochure it included in its technical file stated an overall length of 12,065 mm, a width of 3,048 mm and a specific power of 12.37 kW/tonne — each time beyond the limits set by the specification — and on 30 January 2013 the Council of State held that an undertaking in the tick-box annex does not suffice when the tenderer’s own documentation contradicts it.
What happened?
On 17 August 2012 the Ministry of Defence published, in the Bulletin of Awards and in the Supplement to the Official Journal of the European Union, a notice for an open call for tenders for the purchase of thirteen crashtenders — heavy fire-fighting vehicles for rapid intervention in aircraft incidents — for the military air bases, together with an annual maintenance contract. On 26 November 2012 five tenders were submitted, including that of the American manufacturer Oshkosh Corporation. Two days later, on 28 November 2012, the evaluation report concluded that Oshkosh’s tender was technically irregular. It listed three departures from annex C. Point 3.c.(1) required an overall length of no more than 12.00 m; the tender stated 12,065 mm. Point 3.c.(2) required an overall width of no more than 3.00 m; the tender stated 3,048 mm. Point 3.d.(2) required a specific power of at least 13.0 kW(EC)/tonne; from the stated gross vehicle weight rating of 42,184 kg and engine rating of 522 kW, the ratio was 12.37 kW/tonne. The report added that the functional translation of that specific power — acceleration and top speed when fully laden, indispensable for rapid intervention at aircraft incidents — was supported in the tender neither by a test report nor by simulation calculations. On 13 December 2012 the Council of Ministers approved the purchase and the Minister of Defence awarded the contract to Rosenbauer. The declaration of irregularity was notified to Oshkosh by fax and registered letter of 14 December 2012, received on 15 December. Oshkosh applied for suspension under extreme urgency on 2 January 2013; an order of 4 January 2013 summoned the parties to the hearing of 28 January 2013. Oshkosh raised three pleas. The first came down to this: unless the specification says otherwise, a tenderer may offer equipment that does not yet exist at the time of submission, provided it undertakes to comply with all technical requirements. Oshkosh had completed annex C without any reservation and had ticked ‘YES’ against the contested specifications. The document ‘Specifications for Aircraft Rescue and Fire Fighting Vehicles’, which showed slightly different dimensions, had in its view been sent only as ‘technical documentation considered useful’ — a category the specification itself mentions on page 11 — and not as an undertaking. Its commitments were in the completed annex C and nowhere else. Defence rebutted this with the file itself. The covering note of 23 November 2012 described the tender as consisting of two files, the second of which — the technical and logistical part — expressly included the ‘Specifications for Aircraft Rescue and Fire Fighting Vehicles’, the technical drawing of the vehicle and factory certificates. Nowhere was it stated that this documentation was merely informative. More: in the completed annex C, Oshkosh itself referred to that document in several places to supply the information requested, among others under criteria 1.e and 1.f.(3), and for criterion 3.c.(9) — which required an overall view with the main dimensions — it referred to the technical drawing, which likewise showed dimensions exceeding those allowed. The Council of State sided with Defence. The reasons for the contested decision do not show that the tender was set aside because the vehicle did not yet exist; it was declared irregular because it did not meet technical requirements the specification treated as essential. The dimensions and power of the vehicle presented in the documentation forming part of the tender did not match those requirements. That Oshkosh had undertaken in annex C to comply with all technical requirements did not suffice to establish that its tender did so: the vehicle it presented in its own documentation also had to be genuinely compliant. The non-compliance of that documented vehicle moreover belied the accuracy of the undertaking in annex C. Oshkosh had nowhere stated in its tender that the vehicle described was not the one offered, nor explained why documentation about another vehicle would be useful for the examination of its tender. And although it did not itself state the specific power, it did not establish that Defence could not validly derive it from the weight and engine power it had supplied. The first plea was not serious. The second plea attacked the specification itself: if the [I] specifications prevented Oshkosh from submitting a regular tender because it has no standard model meeting points 3.c.(1), 3.c.(2) and 3.d.(2), then the specification breaches the principle of equality, since this type of vehicle is built to customer order. Defence pointed to the distinction drawn in the specification: an [I] requirement is an indispensable requirement the supplies must meet from the moment the tender is submitted, on pain of being declared non-conforming and excluded, whereas an [S] requirement is a desirable one adding value in the evaluation. Three tenders were compared on the basis of all the [I] specifications, showing the requirements were attainable. The Council found that point 1.e of annex C did require tenderers to have developed and built one compliant crashtender by the time the tenders were opened, but that it did not follow that this had to be a standard vehicle. The Council considered that requirement reasonable, and neither disproportionate nor distortive of competition: it allowed Defence to know precisely what was on offer and to compare the tenders usefully. Not serious. The third plea was raised protectively, since Oshkosh did not have access to its competitors’ tenders: if it turned out that contradictions between attached documentation and undertakings had been overlooked for others, there would be unequal treatment. Having examined the tenders and Defence’s analysis of them, the Council found no prima facie difference in treatment. That plea, too, was not serious. Finally, Defence asked that the tenders be withheld from consultation by the parties, as they are covered by business secrecy under article 65/26 of the Law of 24 December 1993 and effective competition still existed between the tenderers. The Council granted this for that stage of the proceedings, without prejudging what might later prove necessary. It dismissed the application for suspension under extreme urgency, had the judgment served by fax and put the costs, fixed at 175 euros, on Oshkosh.
Why does this matter?
The heart of this judgment is the status of the documentation a tenderer attaches to its tender. Oshkosh built its entire defence on one dividing line: the commitments are in the completed annex C, the brochure is there only for information. The Council of State does not draw that line. What sits in the technical part of the tender belongs to the tender, and the authority uses it precisely to test regularity and to compare tenders. A ticked ‘YES’ is an assertion about the equipment offered, not a guarantee that cancels the figures further along in the same file. Worse: where the tenderer’s own documentation contradicts the undertaking, it belies its accuracy. That makes the judgment practically important for every tenderer working with standard brochures. Sales documentation usually describes the existing product range, while the tender promises a version adapted to the client. That tension is normal — but it has to be explained. The Council points out expressly that Oshkosh had nowhere stated that the documented vehicle was not the one offered, nor why that documentation would then be useful. One sentence in the technical part could have made the difference. The judgment also confirms the evidential weight of figures the tenderer itself supplies. Oshkosh had not stated the specific power, but it had stated a gross vehicle weight rating of 42,184 kg and an engine rating of 522 kW. Defence divided the two and arrived at 12.37 kW/tonne, well below the required 13.0. Leaving a value blank is therefore no escape from scrutiny: the authority may derive it from the data that are in the tender, unless the tenderer shows the derivation is wrong. Finally, the second pillar: how far an authority may go with indispensable technical requirements. The specification distinguished [I] requirements, to be met from submission on pain of irregularity, from [S] requirements that merely add value in the assessment. The requirement that a tenderer had already developed and built one compliant vehicle by the opening date struck the Council as reasonable: it lets the authority know what it is buying and compare the tenders usefully. The argument that such vehicles are built to order moreover foundered on a simple fact in the file — three of the five tenders did meet all the [I] requirements. Anyone claiming that a technical requirement forecloses competition must therefore offer more than their own inability to meet it.
The lesson
Treat every document you attach to your tender as part of your tender. There is no safe category of ‘merely informative documentation’: the authority may use it to test regularity, even where the specification itself uses the term ‘technical documentation considered useful’. If you work with a standard brochure that does not exactly reflect your adapted vehicle or device, say so in as many words in your technical part: which values apply, which brochure values do not, and why you are attaching it anyway. And do not refer, in your tick-box annex, to documents that undercut your own answers — Oshkosh itself referred to the brochure under several criteria and thereby handed Defence the key. Check the derived values as well. You cannot keep a quantity such as specific power out of sight by leaving it blank: if weight and engine power are in your tender, the authority will do the arithmetic. Do it yourself before you submit, and test every result against the threshold in the specification — 42,184 kg and 522 kW give 12.37 kW/tonne, and that is less than the required 13.0. If you want to challenge a technical requirement as foreclosing competition, do so in time and with evidence. Arguing afterwards that you have no standard model does not suffice when other tenderers do meet all the indispensable requirements. If you are a contracting authority, the judgment confirms the strength of an explicit split between indispensable and desirable requirements, expressed in objectively measurable quantities — metres, kilograms, kW per tonne — and of a mandatory annex in which the tenderer must state, specification by specification, to what extent it complies.
Ask yourself
Do you know, for every document in your technical part, whether it can be read as an undertaking — and does it match the values you ticked in the annex? Where your brochure describes a different or older model, have you expressly stated that this is not the equipment offered and why you are nevertheless attaching it? Have you calculated the derived quantities yourself from the figures you supply, as with specific power from weight and engine power here? Does your annex refer to documents that confirm rather than contradict your answers? Do you know which requirements the specification designates as indispensable and which merely add value? And as an authority: are your indispensable requirements formulated in objectively measurable terms, and can you show that several tenderers were able to meet them?
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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 →