One misread bid passage on B30 biodiesel costs De Lijn the award of 105 hybrid buses
De Lijn awarded the supply of some 105 diesel-electric hybrid city buses to VDL Bus Roeselare, but the Council of State suspends that award under extreme urgency because, on the quality criterion, De Lijn wrongly assumed that the runner-up Van Hool did not allow B30 biodiesel, whereas its adjusted bid did — and the gap with VDL was a mere 1.44 points.
What happened?
De Lijn, the Flemish public transport company, launched a negotiated procedure with publication for the ‘purchase of around 123 diesel-hybrid buses’, a contract with an estimated value of 42,238,940 euros split into two lots. Lot 1 — the supply of around 105 diesel-electric city buses — was at stake. The contract was published on 18 January 2013 in the Bulletin of Tenders and on 23 January 2013 in the Official Journal of the European Union. Four bids came in for lot 1, including those of Van Hool and VDL Bus Roeselare. After negotiations and a best-and-final offer, the assessment against the award criteria produced a razor-thin ranking: VDL 94.36 points, Van Hool 92.92, Volvo 80.75 and Iveco 66.63 — a gap of just 1.44 points between the top two. On 25 September 2013 De Lijn decided, subject to approval by the Flemish Government, to award lot 1 to VDL; the Flemish Government approved that decision on 29 November 2013. Van Hool turned to the Council of State, arguing that the duty to give substantive reasons had been breached on sub-award criterion 6, ‘quality requirements’ (out of 8 points). The award report held against Van Hool that its bid deviated because ‘use of B30 not allowed, limited to B20’. Van Hool pointed out that its adjusted bid of 30 August 2013 — which necessarily prevailed over its initial bid and over its reply of 26 July 2013 — did in fact allow B30 biodiesel: the attached maintenance document ‘A330 and A309 Hyb Cummins ISB4.5’ expressly stated that blending biodiesel was permitted ‘up to a maximum of 30 percent by volume (B30)’. The auditor, comparing the bid passages side by side, found that at this stage it did not appear that Van Hool disallowed B30, even if it could have been clearer; a contracting authority is expected to examine an adjusted bid carefully. Because Van Hool scored only 5.50 out of 8 on this criterion against VDL’s 7.50, and because it was not clear exactly how much of the points loss stemmed from the contested B30 ground, it could not be ruled out that this ground cost Van Hool at least 1.44 points — enough to flip the final ranking on reconsideration. Following the auditor’s concurring opinion, the Council of State held the sole plea serious and suspended the award to VDL under extreme urgency.
Why does this matter?
The judgment shows how narrow the margin is within which an authority must justify its qualitative assessment when two bids sit close together. The Council does not step into the shoes of the administration and does not re-score the buses itself, but it does check whether the assessment rests on sufficiently careful and solid reasons. Here one decisive factual premise — that Van Hool did not allow B30 biodiesel — could not be squared with the bidder’s own documents. What clinched it was the interplay with the points gap: because De Lijn had not broken down the weight given to each of the three deviations under criterion 6, the Council could not exclude that the flawed ground weighed heavily enough to reverse the ranking. A seemingly minor point about fuel specifications thus becomes the hinge on which a contract worth over forty million euros turns. For anyone working with public procurement the lesson is plain: in a tight ranking, a contestable ground is rarely ‘superfluous’, and a poorly reasoned points loss is a real suspension risk.
The lesson
For authorities: read an adjusted or final bid as a whole and cross-check the text against the attached technical sheets before you record a deviation — a simple comparison with the earlier version would have sufficed here. With composite quality criteria, also break down which points loss corresponds to which deviation; if you do not, every contested ground becomes potentially decisive once the ranking is tight. For bidders: keep your specifications consistent across your bid documents, because contradictions between the technical description, the maintenance documents and your reply letters invite a negative reading. And mind the arithmetic: if the gap to the winner is smaller than the stake of your complaint, you have an interest in suspension, even without having to redo the ranking yourself.
Ask yourself
As an authority, have you tied each deviation recorded under a quality criterion to a concrete, verifiable points loss, so that it is clear a possibly flawed ground cannot flip the ranking? Did you actually read the final bid in full, including annexes and maintenance documents, before concluding that a technical requirement was unmet? And as a bidder: are your specifications consistent across all your bid documents, and do you know how large your points gap to the winner is relative to the weight of the criterion you want to challenge?
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 →