Three deliveries of more than 15,000 tonnes each: Wallonia adds up the winner’s tonnages, the Council of State does not — road-salt contract suspended
The specifications for 40,000 tonnes of road salt required bidders to have carried out at least three bulk deliveries of NaCl of more than 15,000 tonnes each over the previous three years; because one of the successful bidder FAM-Metro’s certificates concerned a smaller delivery, the Council of State held that the contracting authority could not count that reference — an aggregate volume of over 106,000 tonnes does not make up the shortfall — and suspended the award under extreme urgency, all the more so since Wallonia advanced no argument at all as to any risk to the continuity of the public service.
What happened?
The Walloon Region launched an open procedure for the supply of 40,000 tonnes of chemical de-icing agents — road salt, NaCl — for the winter treatment of the region’s roads and motorways (specifications no. 01.01.03-13C13), published in the Bulletin des adjudications and in the Official Journal of the European Union. Six tenders were submitted. By a decision of 7 August 2013, apparently taken jointly by the Minister for Public Works and SOFICO, the contract was awarded to the temporary association FAM International NV – Metro International Trading BVBA. On 27 August 2013 ESCO Benelux sought suspension under extreme urgency. The heart of the second branch of its fifth plea was qualitative selection. Point 9.3 of the specifications — ‘conditions of technical capacity’ — required, among other things, the list of the main deliveries of de-icing agents over the last three years with supporting certificates, and added a hard threshold: ‘the bidder must have carried out at least 3 bulk deliveries of NaCl of more than 15,000 tonnes each over the last 3 years’. The copy of the tender ESCO had received contained no list of deliveries at all. The Walloon Region replied briefly that FAM-Metro’s tender was indeed accompanied by certificates of good performance from which it had been able to infer technical capacity. The intervening parties argued at greater length: their certificates — one concerning a comparable delivery to the Walloon public service (SPW), another a delivery to SOFICO and a third a delivery to FMP International GmbH — together evidenced 106,643.34 tonnes of road salt delivered over three years. They submitted that assessing technical capacity is not a ‘mathematical check of the number of references and volumes’, that the purpose of the rule — sufficient experience with large-scale bulk deliveries — had been met, and that an authority enjoys a wider margin at the selection stage than at the award stage. The Council of State does not follow that reasoning. Point 9.3 is ‘clear and precise’, admits of no interpretation, and rules out validating technical capacity on the basis of the aggregate volume delivered over the last three years, counting deliveries of less than 15,000 tonnes, or accepting older references. Here, one of the certificates produced by FAM-Metro concerned a delivery of less than 15,000 tonnes; it could therefore not be taken into account. The plea is serious. In the balancing of interests under article 65/15, the Region fared poorly. Article 3.3 of the specifications provided for two phases: the successful bidder had to hold 40,000 tonnes of NaCl in stock by 14 October 2013 — with a performance period for that phase of at least 45 days from the conclusion of the contract — and supply to the road districts could begin no earlier than 15 October 2013. The intervening parties warned of an early cold snap, referring to the snowfall of 2011-2012. The Council notes, however, that suspending the award does not prevent FAM-Metro from building up the required stock, unless it renounces the contract, and — decisively — that the defending party puts forward no argument whatsoever establishing a risk to the continuity of the public service. The Council admits the intervention, puts SOFICO out of the case prima facie, declares the tenders of FAM-Metro and ESCO Benelux confidential, suspends the award decision of 7 August 2013 and orders the immediate execution of the judgment. Costs are reserved.
Why does this matter?
Anyone who casts a selection threshold in figures — three deliveries, each of more than 15,000 tonnes, within the last three years — has thereby written three separate conditions: a number, a minimum size per reference, and a time window. This judgment makes clear that the authority may stretch none of the three. The successful bidder’s plea was not in itself unreasonable: 106,643.34 tonnes over three years amply demonstrates an ability to handle large-scale bulk deliveries, and the selection stage does indeed leave an authority a wider margin than the award stage. But that margin concerns the qualitative assessment of references which meet the stated requirement — not the question whether the requirement still applies. Once the specifications impose a numerical threshold per delivery, there is nothing left to assess: a certificate for less than 15,000 tonnes simply does not count, however impressive the total volume. The balancing of interests is equally instructive. The Region held a strong card — winter road maintenance on motorways is hardly a marginal matter — but did not play it: it simply advanced no argument on the continuity of the public service. The Council adds that suspending the award does not prevent the successful bidder from building up the stock in the meantime. For contracting authorities that is a sober reminder: the balancing exercise under article 65/15 is not an automatic shield making sensitive contracts immune to suspension. If you wish to rely on continuity of service, you must do so concretely and with evidence.
The lesson
As a contracting authority: only frame selection requirements in hard figures if you intend to apply them literally. ‘At least three deliveries of more than 15,000 tonnes over the last three years’ means precisely that — you may not aggregate tonnages, count smaller deliveries or accept older references. If you want room for appreciation, write a qualitative requirement (e.g. ‘demonstrable experience with bulk deliveries of comparable scale’) rather than a threshold. And in extreme-urgency proceedings, advance your interest arguments concretely: invoking winter road maintenance is not enough if you do not explain why suspending the award actually endangers supply — particularly where the specifications already grant the successful bidder a stock-building phase of at least 45 days. As a bidder: when assembling your references, do not rely on the authority’s goodwill to aggregate volumes; each certificate must meet the threshold on its own. And if you have been rejected, request the successful tender and count the references — here a single missing threshold sufficed to have the entire award suspended.
Ask yourself
Does each of your reference certificates meet the threshold in the specifications on its own, or are you relying on an aggregation of volumes the authority is not lawfully permitted to make? As an authority: do you realise that a numerical selection threshold removes all margin of appreciation, even where the bidder’s overall capacity is beyond doubt? In suspension proceedings, have you substantiated your interest in the continuity of the public service concretely, or left it at a general reference to urgency? And have you checked whether suspending the award actually prevents the successful bidder from meeting its preparatory obligations in the meantime?
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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 →