Firefighting gear for men and women alike: Deva Belgium falls 0.61 points short and the Council sees nothing wrong with the women’s sizes
Deva Belgium, which saw the Interior Ministry’s contract for firefighting intervention clothing go to Sioen by a margin of just 0.61 points, had its extreme-urgency claim dismissed: neither the allegedly unworkable size table for the female test subjects, nor the jury assessment by firefighters, nor the male/female score breakdown applied only to its own bid amounted, prima facie, to a serious plea.
What happened?
The Belgian State ran an open procedure for the supply of firefighting intervention clothing — jacket and trousers — for various public services, with price (30%) and quality (70%) as award criteria. The heart of the quality assessment was a practical and visual evaluation worth 60 points, in which a jury of end users — firefighters, men and women — would wear samples and score, among other things, ‘comfort and ergonomics’ (15 points) and ‘functionality and compatibility’ (15 points). Bidders had to supply ten samples according to a size table, split after rectification into five men’s and five women’s sizes. The women’s sizes sparked debate on the Q&A forum: bidders, including Deva Belgium, found them at odds with usual body proportions and asked in vain to measure the test subjects themselves. The authority did publish an explanatory measurement diagram, after which no one asked for further clarification. When bids were opened on 31 January 2022, seven offers were on the table; three were declared substantially irregular. Deva scored full marks on price (30/30 against 25.15 for Sioen), but quality tipped the scales: 45.53/70 against 50.99/70. Strikingly, only for Deva did the jury scores of men (‘very good’ to ‘excellent’, 80-90%) and women (‘moderately satisfactory’ to ‘satisfactory’, 50-60%) diverge widely, and only for Deva were they broken down in the reasoning. Final result: 76.14/100 for Sioen, 75.53/100 for Deva — a gap of 0.61 points. Later clarification showed that nine test subjects (five men, four women) each counted with equal weight. Deva sought suspension under extreme urgency of the award decision of 7 December 2022, raising three pleas: unclear and unworkable women’s sizes, careless reasoning on four specific remarks (conspicuous logos, an unstitched anti-wicking barrier, an anti-slip layer worn away after ten washes and a collar deemed too high), and unequal treatment through the breakdown of its scores while Sioen’s assessment mentioned only ‘men’. The Council of State, presided by chamber president Paul Lemmens, rejected everything. The clarifications and rectifications had removed the ambiguity, and the fact that only Deva’s suits scored badly with the women rather suggested the sizes were sound. The reasoning had to be read as a whole, and even a higher score on the logo point could not mathematically close the 0.61-point gap. The mention ‘men’ for Sioen turned out, after inspection of the confidential internal analysis, to be a mere clerical error: there too, all nine testers counted. Deva was ordered to pay the costs: a roll fee of 200 euros, a contribution of 24 euros and a procedural indemnity of 770 euros.
Why does this matter?
The judgment shows how the Council of State deals with a classic grievance: a bidder claiming that the technical specifications — here the size table for female test subjects — were so deficient that they skewed its assessment. The Council applies a strict but consistent logic. A bidder who receives clarification on the Q&A forum and then stays silent undermines the seriousness of its own plea; and when the problem occurs only with the complaining bidder, while the other bidders delivered fitting samples from the same measurements, the Council reads that, prima facie, as an indication that the specifications were clear enough. Equally instructive is the arithmetical interest test: attacking an individual remark in the assessment is pointless if even a perfect score on that item cannot bridge the points gap with the chosen bidder. The judgment also contains a point of principle worth noting: although women make up barely 2.17 per cent of Belgian firefighters (376 out of 17,598), the authority was entitled to give the assessments of the four female and five male test subjects equal weight — the quality of the equipment matters as much for female firefighters as for their male colleagues. Those hoping to weaponise representativeness statistics against that choice will be disappointed.
The lesson
For bidders: use the Q&A forum not only to ask questions but also to put on record that an answer remains inadequate. Whoever falls silent after a clarification and only invokes the ambiguity after losing the award undermines its own plea. Before raising a grievance, also do the maths: can the contested item bridge the points gap — here 0.61 points — at all? If not, the interest is lacking. And do not underestimate the practical test: if your product scores badly with part of the jury while your competitors’ products fit, the Council will look for the cause in your sample rather than in the tender documents. For contracting authorities: this judgment rewards careful process management — publishing rectifications, answering questions, adding an explanatory measurement diagram and transparently breaking down a divergent assessment while stating the reason. Do watch out for clerical errors in the reasoning, such as the mention ‘men’ where all test subjects were meant: here the administrative file saved the day, but such slips invite litigation.
Ask yourself
During the Q&A round, did you put on record that a clarification from the authority did not solve the problem, or did you go quiet after the answer? Can you demonstrate with figures that your grievance, if well-founded, would actually bridge the points gap with the chosen bidder? Do you realise that an assessment in which only your bid stands out negatively tends to argue against you rather than for you? And as a contracting authority: is every breakdown or divergent presentation in your award reasoning explained, and is your administrative file solid enough to correct a clerical error?
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 →