No bids, so negotiate: Asse could switch procedures, and PAMI loses its extreme-urgency action against the award to De Moor
When no one submitted a bid for the loose furniture of the Asse fire-brigade equipment, the municipality switched to a negotiated procedure without prior publication and awarded the contract to De Moor; the Council of State rejected the suspension action of PAMI, the bidder who narrowly missed the contract, because neither the reproach of unauthorised variants — a term with a precise definition — nor the reasoning complaint held up prima facie, all the more so because PAMI had itself taken part in that negotiated procedure without reservation.
What happened?
As part of the development of the Asphaltco site, the municipality of Asse launched a supplies contract with as its object ‘Lot 4 Fire-brigade equipment — Item 1: Loose furniture’, estimated at 302,500 euros including VAT and governed by special specification no. 11500/PRO.147/10351/LOT1. The contract was published in the Bulletin of Tenders on 18 October 2013 and in the Official Journal of the European Union on 22 October 2013, initially under the open call for tenders. For item 1, however, no bid was submitted. The municipality therefore decided not to pursue the call for tenders and to start a negotiated procedure without prior publication under article 26, § 1, 1°, d), of the Act of 15 June 2006. Within that new procedure three bidders submitted offers: PAMI, De Moor and Buro Project. After examination on 17 March 2014 all offers were declared regular and the ranking by the award criteria read: De Moor 79.35 points for 266,303.03 euros incl. VAT, PAMI 71.60 points for 273,781.11 euros, and Buro Project 70.67 points for 278,282.72 euros. On 14 April 2014 the college of mayor and aldermen approved the report and awarded the contract to De Moor at the recalculated amount of 220,085.15 euros excluding VAT (266,303.03 euros including VAT). On 20 May 2014 PAMI sought suspension under extreme urgency. It argued that, contrary to the specification’s ban on free variants, De Moor had nonetheless submitted variants (it pointed to the items ‘Office chair’ and ‘Mobile archive’) and had filed several offers, so that its own offer would be the lowest regular one, in breach of the principles of equality and due care. The Council of State admitted De Moor’s intervention and examined the pleas. It recalled that a variant, under article 2, § 1, 10°, of the Royal Decree of 15 July 2011, is an alternative way of designing or executing the contract, and found that PAMI did not concretely show that the contested items met that definition; according to the confidential schedule of unit prices, an alternative model was each time accompanied by the note ‘see specification description’. Moreover, the ban on submitting more than one offer (article 54) did not apply, because article 106, § 1, 1°, excludes that article in the negotiated procedure without prior publication, unless the contract documents provide otherwise — which was not the case here. The first plea was therefore not serious. The second plea — a defective statement of reasons for the switch to the negotiated procedure — failed on the interest requirement: PAMI had taken part in that procedure without any reservation and did not show that the alleged lack of reasoning had deprived it of a safeguard within the meaning of article 14, § 1. Lacking a serious plea, the Council rejected the action. PAMI was ordered to pay the costs: a roll fee of 200 euros and a procedural indemnity of 700 euros, due to the municipality of Asse; the intervening party De Moor bore the 150-euro fee for its intervention and, as an intervening party, could not itself receive a procedural indemnity.
Why does this matter?
The judgment clarifies two recurring points of contention in procurement litigation. The first is the switch from an open procedure to a negotiated procedure without prior publication when no bids come in. That is permitted under article 26, § 1, 1°, d), but it carries an often-overlooked consequence: certain rules of classic award — including the ban on submitting more than one offer (article 54) — no longer apply, unless the authority expressly declares them applicable in the contract documents. Anyone wishing to attack the chosen offer must therefore first check which rules even still operate in the procedure actually followed. The second point is the legal weight of the word ‘variant’. A bidder who calls a deviating model or an alternative offer a ‘variant’ thereby says nothing; a variant within the meaning of the Royal Decree presupposes a different way of designing or executing, and that must be concretely demonstrated. Finally, the judgment confirms the harsh flip side of participation: a bidder who competes in a negotiated procedure without reservation can hardly complain afterwards that the choice of that procedure was insufficiently reasoned, because the interest requirement of article 14, § 1, stands in the way.
The lesson
If you are a bidder and want to challenge the award to a competitor, first check which award rules apply in the procedure actually followed: in a negotiated procedure without prior publication, articles 6, 51, 52, 54 and 57 of the Royal Decree of 15 July 2011 fall away, unless the specification provides otherwise. Do not build your plea on the notion of a ‘variant’ without concretely proving that the offer involves a different way of designing or executing; a mere label does not suffice. And if you doubt the regularity of the choice of procedure, make a timely reservation rather than simply bidding — otherwise the interest requirement leaves you weaponless afterwards. If you are a contracting authority, the judgment teaches that after a call for tenders without bids you may validly switch, but that you must not substantially change the original conditions and must concretely justify that switch; if you wish to keep the stricter rules (such as the ban on multiple offers), write that explicitly into the contract documents.
Ask yourself
Do you know that in a negotiated procedure without prior publication, articles 6, 51, 52, 54 and 57 of the Royal Decree of 15 July 2011 do not apply, unless the contract documents declare them applicable? If you accuse a competitor of ‘unauthorised variants’, can you concretely show that its offer involves a different way of designing or executing within the meaning of article 2, § 1, 10°? If you doubt the choice of the procedure followed, did you make a timely reservation about it — or did you simply bid and thereby forfeit your interest? As a contracting authority, do you realise that a switch to the negotiated procedure after an empty call for tenders must be reasoned and must not substantially change the original conditions?
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 →