Antwerp's Scheldt quays: Herbosch-Kiere challenges the award of the quay-wall stabilisation, but runs into the contracting authority's margin of appreciation — and into a premature action
Waterwegen en Zeekanaal awarded the stabilisation of Antwerp's Scheldt quays — the Sint-Andries and Zuid quay walls, part 1 — for 6,907,928.89 euros to the temporary partnership Franki Construct – Max Bögl; Herbosch-Kiere, whose higher bid of 8,285,736 euros was not selected, accused the chosen contractor of lacking experience with VHP piles in tidal water, but the Council of State held that the authority could accept the contested reference — works at the tidal port of Wilhelmshaven — and dismissed both actions.
What happened?
Waterwegen en Zeekanaal launched an open tender for a works contract entitled 'Scheldt quays in Antwerp. Execution phase. Zeeschelde right bank in Antwerp. Quay-wall stabilisation Sint-Andries and Zuid. Part 1', governed by special specifications no. 16EI/11/29. The contract was published on 14 October 2011 in the Bulletin of Tenders and on 19 October 2011 in the Official Journal of the European Union. Four bidders submitted an offer. After arithmetic checking and correction, the award report of 19 December 2011 listed the following prices (excl. VAT): Smet – F&C 5,628,621.24 euros, Franki Construct – Max Bögl 6,907,928.89 euros, Herbosch-Kiere 8,285,736 euros and Besix – Denys 8,422,405.69 euros. All bidders were selected and all offers found regular, except that of Smet – F&C, which was set aside because of the abnormal character of its price. The contract was to be awarded to Franki Construct – Max Bögl as the lowest regular offer. On 22 December 2011 the managing director and the chairman of the board awarded the contract to that partnership, under a power of attorney of 9 November 2011 that expressly still required ratification by the board. By judgment no. 217,839 of 9 February 2012 the Council of State rejected Smet – F&C's extreme-urgency suspension action precisely because, without ratification, that decision was not yet enforceable. The board ratified the award on 8 February 2012; that became the definitive, enforceable decision. Herbosch-Kiere challenged both decisions. Its suspension action against the ratification had already been rejected by judgment no. 218,828 of 5 April 2012. The Council joined the two annulment actions, since they concerned the same award procedure. It declared the action against the 22 December 2011 decision premature and inadmissible, because that decision only became enforceable upon ratification. Yet it placed the costs of that action on Waterwegen en Zeekanaal: the authority had communicated the decision — without even mentioning that ratification was required — in such a way that Herbosch-Kiere could reasonably believe it faced a definitive, enforceable decision and had to act in time. On the merits, in the case against the ratification, Herbosch-Kiere argued that Franki Construct – Max Bögl did not meet the selection requirement of article 19 of the specifications, which demanded experience in executing VHP piles (or jet grouting) in tidal waters. It contested the three references relied on: Hamburg concerned ground anchors and not VHP piles, Amsterdam concerned the metro in a non-tidal port, and the tidal port of Wilhelmshaven concerned, in its view, works on land at a coal power plant — filed, moreover, only at the hearing of the suspension procedure. The Council of State stressed that it is first of all for the contracting authority to assess the references submitted, with a certain margin of appreciation. The file showed that the Wilhelmshaven reference had indeed been attached to the offer, as a reference for jet-grouting works. Herbosch-Kiere failed to show that this reference could not be accepted: the plant does lie on land, but in the immediate vicinity of the water — designed to facilitate the supply of coal — and nothing proved that the jet grouting there could not be subject to tidal action. The plea was declared unfounded. The Council dismissed both actions. It placed the costs of the action against the 22 December 2011 decision (175 euros) on Waterwegen en Zeekanaal, the costs of the suspension and annulment action against the ratification (350 euros) on Herbosch-Kiere, and the costs of the interventions (250 euros) on Franki Construct and Max Bögl, each for half.
Why does this matter?
The judgment brings together two lessons that in procurement litigation usually appear separately. The first concerns the burden of proof when attacking the selection of the chosen bidder. Whoever claims that a competitor lacked the required technical capacity is in fact challenging an assessment for which the authority enjoys a margin of appreciation. It is then not enough to dispute that a reference fits precisely; one must show that the authority manifestly could not accept it. That is a heavy burden, and Herbosch-Kiere did not meet it: the fact that the Wilhelmshaven plant strictly stands on land did not rule out that its jet grouting was exposed to tidal action. The second lesson concerns the consequences of careless notification. The 22 December 2011 award was not enforceable as long as the board had not ratified it — an action against it was therefore premature. But because the authority communicated it as if it were definitive, without mentioning the necessary ratification, it paid the bill for that premature action. The same mechanism explains why Smet – F&C's earlier extreme-urgency action failed: one cannot act urgently against a decision that is not yet enforceable. The case thus shows how the form of an award decision — ratified or not, correctly communicated or not — steers the procedure and the allocation of costs, independently of the merits.
The lesson
If you are a contracting authority and you take an award decision subject to ratification, communicate it only once it is enforceable, or expressly state that ratification is still to follow. If you do not, a bidder may reasonably think the time limit is running and lodge a — technically premature — action whose costs you bear. If you want to challenge a competitor's selection or technical capacity, remember that the authority assesses the references with a margin of appreciation: you do not win by showing that a reference does not fit perfectly, but only by showing that it was manifestly unacceptable. Build that proof from the administrative file, not from photos or website printouts produced only with your last brief. And if you are bidding yourself: a price well over 1.3 million euros above the chosen offer leaves little room; aim then at a demonstrable irregularity, not at an assessment the authority is free to make.
Ask yourself
Do you know, as an authority, that an award decision still to be ratified by your governing body is not enforceable, and that you had better not communicate it as if it were definitive? Do you realise that a misleading notification can saddle you with the costs of a premature action, even if that action is inadmissible? And as a bidder: have you checked whether the decision you are challenging is indeed the definitive, enforceable decision, or still needs ratification? If you attack a competitor's selection, can you show that the authority manifestly could not accept a reference — and does that proof rest on the administrative file?
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 →