25 thousandths of a megahertz decide a Defence radio contract: Jotron first excluded, then winner — and Rohde & Schwarz fails before the Council of State
The Belgian Defence department first excluded the nearly 30,000 euros cheaper tender of Norway’s Jotron as technically irregular because its radios transmit and receive only from 118.000 instead of 117.975 MHz, but withdrew the award to Rohde & Schwarz after Jotron’s extreme-urgency application and awarded the contract to Jotron after all; the Council of State endorsed that reading — internationally, 118 MHz is simply the lowest assignable frequency — and rejected both Rohde & Schwarz’s application and Jotron’s application, which had become without object.
What happened?
In August 2012 the Defence department launched an open adjudication for the supply of 15 sets of VHF radios for Air Traffic Control, with a conditional tranche for maintenance (specifications no. 12CSN02). Annex C to the specifications required radios able to transmit and receive ‘without limitations’ in the aeronautical VHF band from 117.975 up to and including 137.000 MHz, and compliant with the ICAO Annex 10 and ETSI EN 300 676 standards. Four bidders tendered. In its statement of compliance, Norway’s Jotron declared itself compliant but noted in the comments column that its transmitters and receivers cover the band from 118.000 to 137.000 MHz. The technical evaluation report of 7 November 2012 concluded non-compliance, and on 13 December 2012 the authorising officer awarded the contract to Rohde & Schwarz Belgium as lowest regular bidder. Jotron — nearly 30,000 euros cheaper — applied to the Council of State under extreme urgency on 27 December 2012. Before the hearing, Defence’s legal section concluded in a note of 3 January 2013 that Jotron was compliant after all: ICAO Annex 10 itself provides that in the 117.975-137 MHz band the lowest assignable frequency is 118 MHz and the highest 136.975 MHz, so mentioning 118.000 MHz was no deviation. Defence withdrew the award to Rohde & Schwarz and awarded the contract to Jotron. Rohde & Schwarz then filed its own extreme-urgency application on 15 January 2013: the specifications, with their ‘117.975 MHz without limitations’, allegedly imposed deliberately stricter requirements than the international standards, and the new award decision allegedly lacked any statement of reasons. The Council joined the two cases and sided with Defence across the board. Reading the specifications together with the standards they expressly invoke, a tender offering radios certified compliant with ICAO and ETSI may be considered to meet the technical specifications; nothing stated expressly that 117.975 MHz itself had to be usable — not even the purchase request, which merely sought to replace existing equipment with ‘equivalent’ devices. The reasons complaint failed as well: the argumentation in Jotron’s application, which Rohde & Schwarz knew as intervening party and to which its counsel had already responded on 3 January, discernibly served as the reasoning of the new decision, and Rohde & Schwarz did not show it was prevented from litigating with full knowledge. Its application was rejected (costs of 175 euros); Jotron’s had become without object through the withdrawal. Each intervening party bears 125 euros.
Why does this matter?
Technical specifications look objective, but this judgment shows how much interpretation they can hide — here the dispute literally turned on 25 thousandths of a megahertz. The Council of State applies a reading rule of practical importance: specifications that refer to international standards must be read in the light of those standards. If ICAO Annex 10 itself says 118 MHz is the lowest assignable frequency, then specifications imposing that very Annex as a compliance requirement do not tacitly impose a stricter demand by mentioning the 117.975 MHz band edge. An authority that genuinely wants more than the standard must say so expressly — and preferably keep the purchase request consistent. The judgment is also a lesson in procedural dynamics: an authority that realises during an extreme-urgency procedure that it wrongly excluded a bidder may withdraw its decision and re-award, and the reasoning of the new decision may appear from the file — including the excluded bidder’s application — as long as the passed-over competitor can litigate with full knowledge. Finally, the Council does not water down the formal duty to state reasons, but ties it to its ratio legis: a party that knows the reasons and contests them extensively on the merits can hardly maintain it did not know them.
The lesson
For contracting authorities: never write technical requirements that go beyond the international standards you refer to implicitly. Had Defence really wanted 117.975 MHz as a usable frequency, one express sentence in the specifications would have sufficed — as it was, the interplay with ICAO and ETSI decided in favour of the cheapest bidder. And dare to correct a wrongful exclusion: a timely withdrawal during the extreme-urgency procedure cost Defence nothing here, whereas litigating on down a wrong track would have. For bidders: complete your statement of compliance carefully, but know that a comment merely describing the standard-compliant reality (118.000 MHz as lowest assignable frequency) does not make your tender irregular. If you are excluded on a technical point, check whether the specification, read together with the standards in the specifications, really demands what the evaluator infers. And if you are the beneficiary of the first award: realise it can fall as soon as the authority sees its mistake — your strongest defence is then showing that the specifications were deliberately stricter than the standard, not that the withdrawal is inconvenient.
Ask yourself
Do you always read technical specifications together with the standards the specifications refer to, knowing the Council of State does the same? If you want stricter requirements than an international standard, is that stated expressly and unambiguously in the specifications and consistently in the purchase request? Do you realise that withdrawing an award during an extreme-urgency procedure is a valid way to correct a wrongful exclusion? And if you want to contest the new decision: can you show you did not know the reasons, or do your own submissions prove the opposite?
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 →