Lowest price, but a wrong transformer sheet: Cofely Fabricom loses the Schuman-Josaphat rail contract on admissibility
Cofely Fabricom submitted the lowest bid, at 16.9 million euros, for the equipment of the Schuman-Josaphat rail link, but because its bid fell below half the marks on two technical criteria — partly through a data sheet for a liquid-cooled transformer where the specifications required a dry transformer — the Council of State treats it as an irregular bidder without interest and rejects the extreme-urgency suspension.
What happened?
Infrabel, the public-law company that manages the Belgian rail network, launched works contract TR 012363, ‘Equipment of the Schuman-Josaphat rail link: phase 2’, by negotiated procedure with publication. The contract was published in the Bulletin of Tenders of 8 February 2013 and in the Official Journal of the European Union of 13 February 2013. Of seven applications, six were selected; four bidders submitted a best and final offer. On price, Cofely Fabricom was cheapest at 16,900,049.05 euros, ahead of the JV Systrim (18,480,940.98 euros), the JV Cegelec-Putman-Spie (19,510,426.97 euros) and the JV Heijmans Civiel–Van den Berg–Jacobs (20,168,547.99 euros). Article 109 of Part I of the specifications, however, provided that a bid is excluded as soon as it scores less than half the maximum on any one question of the evaluation matrix. Cofely fell below that threshold on two criteria. On criterion 29 (planned LV and HV installations) it named a ‘dry transformer’ in the heading, but the attached data sheets described ‘liquid-cooled’ transformers — whereas the specifications, for safety reasons given the underground siting and fire risk, expressly required dry transformers. On criterion 31 (planning of partial deadline 3) Cofely’s schedule ran to mid-October 2015, while the installation had to be available after 460 calendar days, in early April 2015 — a delay of at least six months. Both bids scoring under 0.50 were rejected; the contract was awarded on 26 November 2013 to the JV Cegelec-Putman-Spie for 19,510,426.97 euros excluding VAT. Cofely challenged the award under extreme urgency, arguing among other things that the assessment of criterion 29 was internally contradictory: after the second round of negotiations it had scored 0.50 out of 1, but only 0.25 in the final assessment. It maintained that it had indeed offered dry transformers and merely attached the wrong sheet, and that Infrabel should have requested the correct one. The auditor and the Council did not follow this. A bidder itself bears a duty of care, and Cofely had — on its own account — attached the wrong sheet three times; from the mere repetition of the specification wording ‘dry transformer’ with a reference to sheets on liquid-cooled devices, Infrabel could not tell for certain that the price related to dry transformers. The duty to be heard and the rights of defence do not apply before a technical irregularity is established, and requesting missing sheets is not the same as requesting alternative sheets in the event of a contradiction; moreover, the interim score of 0.50 had been awarded provisionally and subject to reservation. The ground on criterion 29 was therefore lawful. Because each of the two grounds for rejection could support the decision on its own, Cofely had an interest only if it defeated both; as the ground on criterion 29 held, the complaint about criterion 31 became superfluous. Cofely thus had to be regarded as a bidder with an irregular offer, without any interest in challenging the award to a competitor, all the more so as it did not show that the contract could be awarded to no bidder at all. The Council of State declared the action inadmissible, rejected it and ordered Cofely to pay the costs, set at 175 euros.
Why does this matter?
The judgment shows the flip side of the price tag: the cheapest bid does not help if it is formally irregular. The key lies in the interplay between an exclusion rule in the specifications (article 109: fewer than half the marks on a question means rejection) and the classic doctrine on interest. Once a bid is rejected on two independent grounds, the bidder must successfully challenge both; if it fails on one, it loses its interest and the Council does not reach the rest. Equally important is what the judgment says about roles during negotiations. The bidder itself is responsible for coherent and correct bid documents; an authority that requests missing sheets does not thereby oblige itself to ask for clarification at every internal contradiction. And a provisional interim score confers no acquired right: it may still fall at the final assessment. For everyday tender practice that is a sharp warning that care in compiling the file weighs at least as heavily as price.
The lesson
For bidders: your price will not save you if a technical sheet contradicts your own offer. Make sure the heading, technical description, sheets and price detail describe exactly the same device, especially for mandatory technical requirements such as — here — dry transformers for safety reasons. Do not count on a second chance: there is no duty to hear you before a technical irregularity is found, and a favourable interim score is provisional. Know too that where your bid is rejected on several independent grounds, you must challenge them all to keep your interest. For authorities: a per-question exclusion threshold (like article 109) is a powerful but strict instrument; apply it consistently and give reasons per criterion for why the threshold was not met. Requesting missing documents during negotiations does not oblige you to correct every contradiction, but be aware that a previously awarded score creates expectations: state its provisional character explicitly.
Ask yourself
As a bidder: do your heading, technical description, sheets and price detail describe exactly the same product everywhere, or does an annex contradict your offer? Do you realise there is no right to clarification before a technical irregularity is established, and that a favourable interim score can still fall? Do you know that, with several independent grounds for rejection, you must defeat them all to keep your interest? And as an authority: do you apply a per-question exclusion threshold consistently, give reasons per criterion, and make clear when an awarded score is only provisional?
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 →