Fail to supply the samples and technical sheets, and you render your bid incomparable — and lose Antwerp's tree-grate contract after initially winning it
The Council of State rejects the extreme-urgency action of the bidder who first won lot 5 (tree grates) of Antwerp's street-furniture framework contract but was then declared substantially irregular: because its bid lacked the required technical sheets, descriptions and samples, leaving the city unable to compare it objectively with the other bids, the city could lawfully set that bid aside on acceptable grounds.
What happened?
In September 2014 the City of Antwerp published a contract for a framework agreement to supply and install various street furniture, divided into eight lots. This case concerned lot 5: the supply of tree grates. The award ran through an open call for tenders, with award criteria of quality (60 points — split across the quality of cast iron and steel, the powder coating, the anchoring method and the finishing), price (30 points) and delivery time (10 points). The specifications attached heavy importance to substantiation: bidders had to attach technical sheets, a full description, drawings and photos to give the assessors thorough insight, and at least one sample of about 20 cm of each material to be used — on pain of nullity of the bid. Three bidders submitted offers for lot 5: bvba Belurba, bvba Ferro-Seaport and bvba Wolters-MABEG. In a first review report of 27 March 2015 it was proposed to award the lot to the applicant, which the college of mayor and aldermen approved on 10 April 2015. By letter of 20 April 2015 bvba Wolters-MABEG asked the city to withdraw that award: the applicant's bid was allegedly formally irregular (missing technical sheets) and materially irregular (the offered model deviated from the technical specifications). The city initially saw no ground to withdraw, whereupon Wolters-MABEG sought suspension on 27 April 2015. After reconsideration, however, the city reached a different conclusion: by decision of 18 December 2015 it awarded lot 5 to Wolters-MABEG after all and declared the original winner's bid substantially irregular. The reasoning: an insufficiently clear technical description — particularly as to the removable parts —, the absence of drawings or photos of the tree grates, no dimensions, no technical sheets and no proper sample. On the basis of the documents submitted, the city could not objectively compare the bid with the others, and it had to be set aside. Now the original winner itself turned to the Council of State under extreme urgency against that new award. In vain. The first ground, on formal reasoning, failed: the reasons for the irregularity finding could be sufficiently derived from the contested decision together with the review report, and the fact that the applicant criticised that reasoning on the merits proved that it could defend itself properly. For the second ground the Council recalled the framework: it is first for the authority to determine whether a deviation concerns an essential specification; with a substantial irregularity the bid is void and must be set aside, with no discretion, whereas with a merely relative irregularity the authority may choose — always on acceptable, carefully examined grounds. A deviation that compromises the objective comparability of the bids leads, in any event, to substantial irregularity. The specifications showed the great weight of documentation and samples, also given the quality criterion that made up 60% of the points. The technical description of the tree grates (title III.6) moreover did not fix all aspects — including the anchoring and the assembly of the four segments —, so it was for the bidders to fill in those margins intelligibly. The applicant's claim that a mere declaration of conformity with the specifications sufficed because the specifications ‘leave no room at all’ therefore rested on a wrong premise. The Council concluded that the city could acceptably hold that thorough insight into, and objective comparison of, the bid were impossible. Neither ground was serious; the action was rejected and the applicant ordered to pay costs (court fee 200 euros, procedural indemnity 700 euros), the intervening party a court fee of 150 euros.
Why does this matter?
This arrest makes concrete what ‘objective comparability’ means in practice: not the authority giving you the benefit of the doubt, but your own bid enabling the assessors to understand your product thoroughly. When specifications expressly require technical sheets, descriptions, drawings, photos and physical samples — especially where quality weighs heavily in the award — these are not formalities but the building blocks of a comparable bid. If they are missing, the authority can set your bid aside as substantially irregular, with no margin of appreciation. The arrest also illustrates that an award is not final: a competitor who timely and reasoned asks for withdrawal and goes to the Council can prompt a reconsideration that makes the original winner lose the contract after all. And it confirms that the formal duty to state reasons is met once the reasons can be derived from the decision together with the review report — whoever attacks those reasons on the merits thereby shows they understood them.
The lesson
Treat every requested technical sheet, description, drawing, photo and every sample as a condition for the validity of your bid, not as an incidental annex — certainly where the quality criterion weighs heavily. Always supply the requested samples; the specifications may sanction their absence with nullity. Never assume that a general statement ‘we will deliver in conformity with the specifications’ suffices: where the specifications leave margins — for instance on anchoring or assembly — you must fill them in concretely and intelligibly yourself, so that the assessors can objectively compare your product with others. Finally, realise that winning is no certainty: an award can be reconsidered after a reasoned withdrawal request or a suspension action by a competitor. So build your bid from the outset to withstand a critical, comparative test.
Ask yourself
Take your last supply bid with a heavy quality criterion. Did you actually attach every requested technical sheet, description, drawing, photo and every sample — or did you somewhere rely on a general declaration of conformity? Did the specifications leave room on points such as anchoring, assembly or finishing, and did you fill that room in concretely and intelligibly so that an assessor can objectively compare your product? And if you recently won an award: did you count on it being final, or did you allow for the possibility that a competitor can prompt a reconsideration through a withdrawal request or a suspension action?
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 →