The regular maintenance contractor for years, yet not selected: forget the equipment list required ‘on pain of nullity’ and you are out — even as a trusted partner
Vandezande BVBA had, by its own account, maintained the mechanical and oil-hydraulic equipment of waterway structures in West and East Flanders since 1997 and 2000, but was not selected in the new tender because it failed to enclose the equipment list and a complete list of references, which the specifications required on pain of nullity; the Council of State dismisses its extreme-urgency applications: past cooperation does not relieve an incumbent of the duty to submit a careful tender.
What happened?
Through the Agency for Roads and Traffic, the Flemish Region contracts out the maintenance, repair and renewal of mechanical and oil-hydraulic equipment of structures along waterways — bridges, locks — and of certain roadside installations. Vandezande BVBA said it had performed this contract since 1997 in West Flanders and since 2000 in East Flanders. A first procedure, advertised in the Official Journal of the EU on 27 March 2010, was abandoned because of a publication defect. The new contract, tendered as a services contract by open procedure in two lots (East and West Flanders) under specifications MDL/09H01b, was published at EU level on 3 August 2010. In annex 6 the specifications required proof of technical capacity, including a list of the main services of the last five years — with year, title, amount, client, contact person and a short description, supported by certificates or a self-declaration — and a statement of the vehicles, tools, equipment and technical resources available. Those documents had to be enclosed with the tender ‘on pain of nullity’, because the authority wanted to verify capacity at the selection stage. The selection requirements appeared only in the specifications, not in the contract notice. Four companies tendered for each lot. In the award reports of 29 November 2010, three of the four, including Vandezande, were not selected: Vandezande’s reference list was incomplete and the equipment list was missing. Only Desmet Machinebouw Engineering NV remained and was awarded both lots. Vandezande learned of this by letters of 3 February 2011 and applied on 18 February 2011 for suspension of both lots under extreme urgency. Because the contract had been published after 25 February 2010, the new remedies regime of the Law of 23 December 2009 applied: no proof of serious harm difficult to repair was required and the extreme-urgency procedure was mandatory, including below the EU thresholds. Only the seriousness of the pleas had to be examined. Chamber President Dierk Verbiest found none of the pleas serious. The fact that the selection requirements were not in the notice did not harm Vandezande: it tendered knowing the specifications and its annex 6 itself referred to ‘the supporting documents requested in the specifications’. The argument that after years of cooperation the authority must have known it was capable also failed. The Council finds it ‘strange’ that a company that has performed the contract for years is not selected, but that results from the ‘rather strict’ provision of the specifications, whose lawfulness Vandezande did not challenge. The authority did not claim Vandezande lacked capacity, only that the mandatory proof was missing. Having performed a contract before does not exempt a bidder from submitting a careful tender for a new one, and the principle of legitimate expectations cannot release an incumbent from the specifications. Article 72(4) of the Royal Decree of 8 January 1996 allows the authority to have documents completed, but does not oblige it to; doing so here would have breached its own specifications and equal treatment. Documents from the earlier, abandoned procedure did not count, and the lists of service orders and approvals that Vandezande only added to its application could no longer cure the defect. A provision imposed on pain of nullity signals that it is essential; the applicant may show that this choice is unreasonable, but Vandezande did not. The attacks on the selected bidder also failed. The contractor approval rules of the Law of 20 March 1991 apply only to works, and the contract had been classified as a services contract without Vandezande contesting that; moreover, it did not show that the works exceeded EUR 500,000, the class 3 ceiling, and Desmet held the K1 class 3 approval required by the specifications. As to financial capacity, no bidder had submitted all documents, but these were not required on pain of nullity and the authority reasonably excluded only the bidder that gave no turnover statement at all. Desmet’s references were supported by certificates of satisfactory performance. Finally, as a non-selected bidder, Vandezande had no further interest in criticising the comparison of tenders. The applications were dismissed; Vandezande bore costs of EUR 350, and the intervening party the costs of its interventions (EUR 250). Auditor Inge Vos had given a concurring opinion.
Why does this matter?
This judgment is a classic for every incumbent service provider. The Council itself names the discomfort — it is ‘strange’ that the regular maintenance contractor is not selected — but the outcome is clear: specifications requiring documents on pain of nullity are applied strictly, even to a firm that has done the job well for years. The relationship with the client, documents filed earlier and an approval the authority knows about replace none of the documents that should have been in the tender. The judgment also shows the flip side for contracting authorities: the nullity sanction makes regularisation almost impossible, because otherwise the authority breaches its own specifications and equal treatment. An authority imposing strict formal requirements may thus lose its trusted partner. The judgment also offers useful clarifications: selection requirements set out only in the specifications do not lead to annulment if the bidder knew them; the contractor approval scheme does not apply to a services contract; and a bidder that was not itself selected can challenge the ranking only by showing that the contract could not be awarded to anyone. The judgment predates the Law of 17 June 2016 and the current regularisation regime, but its core lesson about complete tenders remains relevant.
The lesson
For bidders: treat every tender as a first introduction. Before submitting, go through the list of documents required ‘on pain of nullity’ or ‘on pain of irregularity’, and complete reference lists exactly in the requested format — with amounts, contact persons, descriptions and supporting evidence. Do not count on a request to complete; that is an option for the authority, not a right for you. If you consider a nullity sanction unreasonable, challenge its lawfulness, otherwise it stands. For contracting authorities: consider whether a nullity sanction on supporting documents is necessary; it forces you to exclude even good, trusted providers and leaves little room for correction. State the selection requirements in the contract notice itself, as the rules require. And apply strict requirements consistently to all bidders, because that is what the Council checks.
Ask yourself
As a bidder: have I actually enclosed with this tender every document the specifications require on pain of nullity — regardless of what the client already knows about me? Does my reference list contain all requested data (year, title, amount, client, contact person, description) and the required evidence? Have I expressly challenged the lawfulness of a strict nullity sanction in time if I consider it unreasonable? As a contracting authority: is the nullity sanction on my selection documents necessary and properly reasoned? Are my selection requirements in the contract notice, and do I apply them with the same strictness to all bidders?
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 →