A towing company whose permit doesn't allow night work complains the competitor has the same problem — but that actually weakens the argument
The Council of State rejects the suspension request of a towing company challenging the award of a framework agreement for towing and vehicle storage services, ruling that a contracting authority need not question the adequacy of submitted environmental permits for 24-hour service, especially when the applicant's own permit has the same limitation.
What happened?
Police zone Geel-Laakdal-Meerhout awarded a framework agreement for towing, recovery and vehicle storage via open procedure. Two bids were submitted. The losing incumbent challenged the award on three grounds. First, it argued the winning bid was substantially irregular because the winner's environmental permit prohibits noise-generating activities between 7pm and 7am and on Sundays/holidays (under Vlarem II art. 5.15.0.6), making a 24-hour service impossible. The Council found this argument weakened by the fact that the applicant's own permit contains the same limitation. The authority need not question the adequacy of submitted permits in these circumstances. Second, the applicant challenged the quality scoring: it scored 36/40 (90%) versus 28/40 (70%) for the winner, and argued it should have received the maximum score. The Council ruled that a global qualitative assessment with an ordinal scale does not mean the best offer automatically gets the maximum score. The authority may judge an offer as 'good' without considering it 'excellent'. Third, the applicant challenged the price investigation, arguing the estimate was flawed and a special investigation was needed given a 16% price difference. The Council found the estimate difference was explained by lower quantities based on actual execution data — data provided by the applicant itself as the incumbent contractor. With only two bidders, neither price serves as an objective benchmark.
Why does this matter?
This ruling illustrates a recurring pattern: the losing tenderer arguing from the assumption that its own offer is the benchmark. The applicant complained about a permit issue affecting the competitor while having the same issue itself, claimed the maximum quality score simply for being the best, and treated its own price as the norm. The Council consistently points out that your own situation is not an objective standard.
The lesson
For tenderers: an argument attacking a defect in a competitor's offer while your own offer has the same defect loses its force. A global qualitative assessment doesn't mean the best offer gets the maximum score. And your own price is not an objective benchmark, especially with only two bidders. For contracting authorities: document your estimate carefully, but lower quantities based on actual execution data can prima facie explain differences with earlier estimates.
Ask yourself
Are you complaining about a regulatory issue in the competitor's offer that also applies to yours? That weakens rather than strengthens your argument. Expecting the maximum quality score just because yours is the best offer? That doesn't follow from a global evaluation method.
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 →