A 510-million railway contract suspended: Infrabel amended the specifications too often and too late in the ETCS signalling case
The Council of State suspends Infrabel's award of the ‘ETCS-L2+IL’ contract — the railway signalling awarded for 510,035,970.81 euros to the temporary partnership Siemens-Fabricom — because the authority repeatedly and substantially amended the specifications after the opening of the offers (options removed, thousands of beacons added, a pilot project replaced) and gave bidders only five working days to submit a revised final offer, breaching equality and transparency.
What happened?
After the Buizingen rail disaster of 15 February 2010, Infrabel and the NMBS launched an investment plan, the ‘ETCS masterplan’, estimated at 3.7 billion euros, to equip the entire Belgian rail network from 2022 with speed-control and emergency-stop systems. The contested contract ‘ETCS-L2+IL’ forms part of it: the development, manufacture, supply, programming and installation of the European Train Control System at level 2 on part of the network, together with the electronic interlocking (‘IL’) that makes the system work. The contract was placed through a negotiated procedure with publication; the notice appeared in 2011, and on 26 January 2012 Infrabel selected, among others, the applicants and the future awardee. There followed a long series of amendments to the specifications (the successive ‘baselines’ BL2 to BL9 RFP2-2), with first offers in 2012 and adapted offers in 2013. In January 2014 Infrabel, after a ‘technical and administrative freeze’ of the offers, asked only for a final financial offer (BAFFO). The authority then had more than 2,000 pages of technical documents translated — expressly referring to judgment no. 226,429 of 13 February 2014, in which the mere fact that technical specifications were drafted only in English had justified a suspension — and sent these to the bidders on 15 September 2014, who confirmed their offers on 22 September 2014. On 14 October 2014 Infrabel's board of directors awarded the contract to the temporary partnership Siemens-Fabricom (Siemens and Cofely-Fabricom) for 510,035,970.81 euros. The temporary partnership AVES (Alstom Belgium, Van den Berg, Engema and Louis Stevens en Co) sought suspension under extreme urgency and later also brought an annulment action. Their first ground accused Infrabel of breaching equality, transparency and the patere legem principle by making, after the opening of the offers, numerous and substantial changes to the object and specifications of the contract, without giving bidders enough time to prepare an adapted offer. The Council recalled that in a negotiated procedure with publication — particularly in the special sectors — the authority has a broad margin to negotiate, but remains bound by equality, transparency and the rules it set itself; under the specifications it could depart from non-essential requirements, but thus not from essential conditions. Assessing against baseline 3, the Council found several problematic changes: ‘free options’ were removed but nonetheless integrated into the contract via the evaluation matrix; thousands of beacons were added at a time when Infrabel already knew the prices and characteristics of the competitors' offers, while bidders could not file a new, complete and adapted offer on this; the number of axle counters was substantially increased; and the pilot project P12 was replaced by P19, which — given the extrapolation of the Total Cost of Ownership over a limited number of projects — substantially altered the contract conditions. The BAFFO of 13 January 2014 could concern only the financial aspects and did not allow the technical solution to be adapted, and the period of only five working days for a new final offer after the translation of more than 2,000 pages was manifestly too short. The fact that the awardee ultimately did not submit a new final offer, so that the ranking did not change, was irrelevant: it was enough that the lack of time could have influenced the outcome. The Council held that the first ground was serious, admitted the intervention of Siemens-Fabricom, suspended the award decision of 14 October 2014, ordered the immediate execution of the judgment and directed the reimbursement of 800 euros the applicants had paid twice; it did not yet rule on costs.
Why does this matter?
This is a textbook example of the limits of the margin to negotiate in large, complex contracts. In a negotiated procedure with publication — and certainly in the special sectors — an authority may adjust the specifications, but that freedom stops at the essential conditions of the contract. Changes made after the authority knows the offers (and thus the competitors' prices and technical choices) are particularly sensitive: even if they seem ‘neutral’ or ‘clarifying’, they may break equality between bidders. Equally important is the procedural lesson: even permitted changes require that bidders genuinely have the chance to submit a complete, adapted offer. A purely financial final offer (BAFFO) after a ‘freeze’ of the technical aspects, or a period of five working days after thousands of pages of amended or translated documents, does not suffice for that. And the threshold for suspension is lower than often thought: it is enough that the established irregularity could have deprived the bidder of a chance at the contract — not that it is proven the outcome would have been different.
The lesson
For authorities: determine the essential conditions of your contract from the very first specifications and resist the urge to adjust them as you go, especially after you have seen the offers. If you must make substantial changes, give bidders a real chance at a new, complete offer — with a reasonable period proportionate to the scale of the changes and the translated documents — and do not reduce a final round to price alone. For bidders: document every change to the specifications after the opening of the offers and its effect on your technical solution and pricing, and voice your objections promptly and in writing; show concretely that a change touches an essential condition or distorts equality, and that the period given did not allow you to prepare a usable adapted offer. You need not prove you would have won — only that the defect could have influenced the outcome.
Ask yourself
Suppose the authority repeatedly amends the specifications during a negotiated procedure after the offers have already been submitted. Can you, for each change, identify whether it touches an essential condition (object, price calculation, quantities, core technical requirements) or a non-essential detail? Was the change made after the authority already knew your offer and your competitors', and did you get the chance to submit a complete adapted offer or only a financial final round? Was the period given reasonable in proportion to the scale and complexity of the amended or translated documents? And did you raise your objections promptly and in writing, so that no one can accuse you of bad faith?
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 →