Forum Questions as a Strategic Weapon in Public Procurement

Every set of tender specifications has weak spots. Vague selection criteria, unclear evaluation formulas, confusing conformity requirements — each one is a ticking time bomb that only goes off after the contract award. Usually in the face of the losing tenderer.

But it doesn’t have to be that way.

We analysed 50 recent rulings from the Belgian Council of State on public procurement. The conclusion is as simple as it is underused: the forum — the Q&A round during the procurement procedure — is the most powerful tool bid managers have to correct specification errors before they cause damage.

In this article, we show which errors occur most frequently in Belgian tender specifications, how to spot them in advance, and how a targeted forum question strengthens both your bid and your legal position.

The 7 Most Common Specification Errors (and How to Spot Them)

1. Vague selection criteria without measurable thresholds

The problem: The specifications require “similar references” or “relevant experience” without defining what “similar” or “relevant” concretely means. No minimum amount, no volume, no nature of the service.

What the Council of State says: In ruling no. 251,611 (24 September 2021), the Council annulled an award decision for LED lighting fixtures because the selection criterion “similar previous deliveries” did not contain an “appropriate level of requirements” as mandated by Article 65, §2 of the Royal Decree on Placement. The contracting authority attempted to clarify this after the fact through answers to questions, but the Council rejected this: a post-procedure clarification cannot remedy defective specifications.

Your forum question:

“What is the minimum required volume and/or amount for the references? What do you concretely mean by ‘similar’ contracts? What characteristics must the references demonstrate?”

Why this works: The authority must commit. Either it specifies the criterion (better specifications for everyone), or it remains vague — and then you have a documented argument if you are later not selected.

2. Confusion between award criterion and conformity requirement

The problem: The specifications present something as a quality criterion (on which you score points), but in practice treat it as a knock-out criterion (rejecting your tender as irregular).

What the Council of State says: In ruling no. 254,388 (6 September 2022), the Council suspended the award of a fiber-to-school broadband contract. The Flemish Community had included “total installation time for all sites” as an award criterion, but then rejected a tender as substantially irregular because the offered profile was not available at the time of award. The Council ruled: if it is an award criterion, you cannot use it to exclude.

Your forum question:

“Is [criterion X] assessed as an award criterion (with point scoring) or as a conformity requirement (pass/fail)? What are the consequences if [condition Y] is not met at the time of award but will be at the time of execution?”

Why this works: You force the authority to establish the legal nature of the criterion. That determination is binding — the authority may no longer switch qualification (the patere legem quam ipse fecisti principle).

3. Missing or unclear evaluation formula

The problem: The specifications mention award criteria with a points distribution, but do not specify how points are calculated. Linear, proportional, relative to the best score?

What the Council of State says: In ruling no. 264,881 (18 November 2025), a tenderer challenged the evaluation formula for a solar panel installation on a hospital car park. The formula used the highest expected annual yield as the denominator, systematically favouring the tenderer with the highest output — regardless of cost efficiency.

Your forum question:

“Could you explain the exact calculation formula used for evaluating [criterion X]? Is the score calculated relative to the best tender (relative) or against an absolute scale?”

Why this works: Without a formula, the evaluation is a black box. By asking for the formula in advance, you make the evaluation predictable — and verifiable.

4. Price assessment without rules for abnormally low prices

The problem: The specifications do not state how the authority handles seemingly abnormally low prices. Is there a threshold? Does the tenderer get a chance to justify?

What the Council of State says: In ruling no. 256,528 (15 May 2023), the Council suspended the award of a framework agreement for copywriting. The Province of Antwerp had rejected a tender of EUR 34.70 per hour as abnormally low — without asking the tenderer for clarification. The tenderer was a sole trader with low overhead and a favourable tax regime. The Council ruled that the authority was obliged to request clarification first.

Your forum question:

“What method do you use to determine whether a price is abnormally low? In that case, is the tenderer given the opportunity to justify in accordance with Article 36 of the Royal Decree on Placement?”

Why this works: You remind the authority of its legal obligation. And if you offer a competitive price yourself, you have built a file showing you proactively raised the issue.

5. Unclear certification requirements

The problem: The specifications require a certification (VCA, ISO, etc.) without specifying whether it concerns a company certificate or a personal certificate.

What the Council of State says: In ruling no. 254,959 (4 November 2022), the Council confirmed the distinction between a company-level VCA certificate (issued after a company audit) and a personal VOL-VCA diploma (issued after individual training). A contractor for ditch maintenance had submitted a VOL-VCA diploma instead of a VCA certificate. The non-selection was justified.

Your forum question:

“Do you require a company-level [certificate X] (based on a company audit) or does a personal certificate/diploma of the responsible person suffice? Does this requirement also apply to sole traders without employees?”

Why this works: You avoid investing in a tender that gets rejected on a technicality. And you force the authority into a proportionality assessment — especially relevant for SMEs.

6. Ambiguous delivery deadlines or availability requirements

The problem: The specifications request a delivery period in “days” without specifying whether these are calendar days or working days.

What the Council of State says: In ruling no. 258,814 (13 February 2024), a tenderer scored zero out of five points for delivery time because they had offered “42 calendar days” with the addition that factory closures could extend the deadline. The Council ruled that this addition created a “legitimate ambiguity.”

Your forum question:

“Does the requested delivery period refer to calendar days or working days? How are periods of collective closure or force majeure handled? May the tender include a reservation or must the deadline be absolute?”

Why this works: You know exactly what you can offer without risking a zero score.

7. Unclear contractor recognition requirements

The problem: For mixed-nature works contracts, it is not always clear which recognition category and class are required.

What the Council of State says: In ruling no. 258,578 (25 January 2024), the Council examined whether a contractor with recognition in category D12 class 5 met the requirement for category D class 4 in renovation works for a youth hostel.

Your forum question:

“Does a recognition in [subcategory X] suffice, or is the general category [Y] required? Does Article 5, §7 of the Recognition Royal Decree apply to this contract?”

The Strategic Logic: Why the Forum Is a Pre-Litigation Instrument

The forum is not a non-committal Q&A round. It is a legal instrument with binding consequences in both directions.

For the contracting authority

Every answer to a forum question becomes part of the tender documents. The authority is legally bound by it. It cannot later say: “We meant something different.” The patere legem quam ipse fecisti principle — the obligation to respect your own rules — also applies to answers to forum questions.

For the tenderer

Anyone who knows about a defect and does not ask about it risks the Council of State later ruling that they tacitly accepted it. In ruling no. 250,263 (30 March 2021), the Council criticised the applicant for not having concretely substantiated the alleged incompleteness — and, implicitly, for not having flagged the problem earlier.

The two outcomes of a forum question

Every targeted forum question leads to one of two outcomes:

• The authority clarifies: better specifications, level playing field, better tender.
• The authority does not clarify: defective specifications remain, but you have a documented serious argument for a later legal challenge.

Either way, you win.

Practical Approach: Forum Questions as Part of Your Bid Strategy

Step 1: Scan the specifications for the 7 risk zones

Systematically review the specifications against the seven points above. Flag every passage that is vague, ambiguous, or internally contradictory. Focus especially on:

• Selection criteria without measurable thresholds
• Award criteria without formula or method
• Criteria whose legal nature (pass/fail vs. point scoring) is unclear

Step 2: Formulate your questions neutrally but precisely

Avoid confrontational wording (“Your specifications violate…”). Instead, ask questions that invite the authority to clarify:

• Good: “Could you clarify the minimum value the references must meet?”
• Bad: “Your selection criterion violates Article 65 §2 of the Royal Decree on Placement.”

The first formulation gets an answer. The second creates resistance and gets you nothing.

Step 3: Document systematically

Save every question and every answer. Note the date. If the authority does not respond or responds vaguely, document that too. This file is your foundation if you later consider urgent suspension proceedings (UDN procedure).

Step 4: Use the answers in your tender

Explicitly refer to answers to forum questions in your tender when making an interpretation choice. This protects you against the accusation that you misread the specifications.

Step 5: After the award — the quick check

If you were not awarded the contract, compare the award decision against your forum question file. Check:

• Did the authority respect its own answers?
• Were the criteria applied as clarified?
• Are there deviations from the published method?

If the answer to any of these questions is “no,” you have a potentially serious argument.

The Forum as a Cultural Shift

Many bid managers instinctively avoid asking questions. “We don’t want to be a nuisance.” “We don’t want to draw attention.” “We understand the specifications well enough.”

The case law of the Council of State tells a different story. The tenderers who ask questions stand stronger — both commercially and legally. And those who remain silent are left empty-handed when things go wrong.

The forum is not a sign of weakness. It is a sign of professionalism.

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This article is based on an analysis of 50 rulings from the Belgian Council of State on public procurement from the period 2020-2025.

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