A tender by email in a procedure that allowed only post or hand delivery: Ghent University should have set TBLOX’s tender aside — and could not change its defence only after the auditor’s report
Ghent University awarded its ‘marketplace’ contract by negotiated procedure without publication to TBLOX, whose tender had been submitted by email although the specifications allowed only dispatch by post or delivery in person; the Council of State held that the method of submission is a substantial formality going to equality between tenderers — even without an express nullity sanction and even in a form-free negotiated procedure — and annulled the award, after disregarding the entirely new defence the university raised only in its final memorandum.
What happened?
Ghent University launched a public contract by negotiated procedure without publication for the provision of a ‘marketplace’ — according to the specifications, a computer program allowing electronic orders to be placed, in a first phase particularly for the purchase of chemical, biological and radioactive products. Two undertakings were invited to tender: Animal Immoglobulin Products and TBLOX. The closing date for receipt was 28 August 2009; both submitted a tender. The evaluation report concluded that the two were ‘equivalent candidates in terms of the technical solution’, with TBLOX enjoying ‘a very slight advantage’, and that on price TBLOX offered ‘clearly a cheaper alternative’ — price being the most important criterion in this procedure. On 30 September 2009 the rector, adopting the reasons of that report, awarded the contract to TBLOX. Animal Immoglobulin Products brought an action on 18 December 2009 against that decision and against the implied decision not to award the contract to it. Its second plea was simple and lethal: the specifications nowhere provided for tenders to be submitted by email, and TBLOX appeared to have done exactly that. Heading 7 of the specifications required the tender to be sent, in a definitively sealed envelope, to the address of the Finance Directorate or handed in there, with a specific wording on the envelope, and provided that where it was sent by post that envelope had to be placed in a second sealed envelope and sent by registered mail. Email or any other electronic route was not mentioned. In its defence memorandum the university did not contest the facts but the legal characterisation: TBLOX’s tender had been submitted in time and signed, the specifications nowhere provided that submission by post was required on pain of nullity and did not exclude email, and non-compliance was not sanctioned by irregularity or nullity. At most, then, there was relative nullity, and it was for the contracting authority to judge whether that should lead to rejection — which it had not considered necessary. It also pointed out that this was a negotiated procedure, subject to little formalism and leaving the authority a wide margin of decision. The Council of State did not follow that reasoning. The manner in which a tender must be submitted, it held, constitutes a substantial formality going to equality between tenderers. Departures from it in principle render the tender irregular and may not simply be accepted by the contracting authority. The mere fact that the specifications attach no express sanction of absolute nullity to a departing method of submission makes no difference. Nor did it matter that the contract was awarded by negotiated procedure without publication: even in the relatively form-free negotiated procedure, a contracting authority remains bound by the provisions of its own specifications. The most instructive passage of the judgment, however, concerns not the specifications but litigation conduct. Animal Immoglobulin Products had raised its plea already in its application. In its defence memorandum the university did not contradict the factual premise — that the tender had been submitted by email; on the contrary, it built its entire defence on that premise. Only after the auditor’s report, which found the plea well-founded, did it switch position entirely in its final memorandum: TBLOX had in fact also submitted ‘the original of its tender’, stamped by the Finance Directorate on 28 August 2009, and it added that document as a new item to the administrative file. That could not be taken into account. First, there was no apparent reason why the university had not developed this far more pertinent defence already in its defence memorandum. Second — and this is the point of principle — its approach removed its position from written contradiction by the applicant in its reply and final memoranda, and from the written examination of the case by the audit office: both essential in the essentially written annulment procedure. The Council therefore held it established in law that TBLOX’s tender had not been submitted in the prescribed manner and that the university should not have taken it into account. The objection of lack of interest, likewise raised only in the final memorandum, also failed. Nothing in the administrative file showed that Animal Immoglobulin Products had not submitted its own tender in accordance with the rules; in that same memorandum the university even acknowledged that it had submitted an original, signed tender. Its legal position was therefore not comparable to TBLOX’s. And the fact that the university had allowed it to make corrections to its tender had, according to the contested decision itself, been no obstacle to finding that tender regular. The plea was well-founded. The Council of State annulled both the rector’s decision of 30 September 2009 and the implied decision not to award the contract to Animal Immoglobulin Products, and ordered Ghent University to pay the costs of the annulment action, assessed at 175 euros. New documents and arguments filed by the applicant after the close of the debates gave no cause to reopen them: they were not necessary for the resolution of the case.
Why does this matter?
This judgment corrects two misconceptions that still surface today. The first concerns the specifications. Contracting authorities regularly reason: if I attached no sanction to a requirement, I have room to overlook a departure from it. For many requirements that is right. For the method of submission it is not. That formality goes directly to equality between tenderers — whoever submits by email escapes the sealed envelope, the postmark and the simultaneous moment of opening — and is therefore substantial by its nature, not because the specifications say so somewhere. That insight has since moved technically to electronic platforms, but the reasoning is unchanged: whoever submits outside the prescribed channel has not validly submitted. The second concerns the negotiated procedure. Its relative freedom from formalities is often read as a general dispensation. The Council makes short work of that reading: the law imposes few formalities in such a procedure, but the specifications the authority itself drafted continue to bind it. Patere legem quam ipse fecisti applies in full — whoever makes the rules must also apply them, even where no one obliged them to make those rules. The third lesson is procedural and at least as usable. The annulment procedure before the Council of State is a written procedure, and that is no formality. A defending party that plays its strongest card — here, the existence of a stamped paper tender — only after the audit office has found the plea well-founded, plays it too late. The reason is not formalism but equality of arms: the other side can no longer answer it and the audit office can no longer examine it. You defend a file in your defence memorandum, not in your final memorandum. The university may here have lost a case it could factually have won.
The lesson
Submit through the channel the specifications prescribe, and through no other — not even where the authority informally lets you know that an email will do, not even in a negotiated procedure where everything seems looser, and not even where the specifications attach no sanction to a departure. The method of submission is substantial because it goes to equality between tenderers. If you notice that a competitor submitted outside the prescribed channel, that is a free-standing plea: you need not show that you would otherwise have won, and the fact that your own tender was corrected afterwards does not make your legal position comparable to that of a tenderer who never formally submitted validly. As a contracting authority, do not write submission rules you are not prepared to enforce. If you do accept a tender by another route, the absence of a nullity clause in your specifications does not cure that, nor does the fact that you are running a negotiated procedure. Your own specifications bind you. And if you are litigating before the Council of State, put your complete factual defence in your defence memorandum. If you do not contest the factual premise of a plea, you are taken to accept it. The document that could have saved your case — here a tender bearing a stamp of 28 August 2009 — is worthless if it surfaces only after the auditor’s report: it then escapes your opponent’s contradiction and the audit office’s examination, and the Council disregards it. The same holds for objections: an objection of lack of interest raised only in the final memorandum comes too late to carry weight.
Ask yourself
Do you know exactly through which channel your tender must be submitted, and do you keep to it strictly, even where the specifications attach no express nullity sanction? Do you realise that a negotiated procedure does not release you from the formalities the authority wrote into its own specifications? As a contracting authority, have you included submission rules you actually intend to enforce — and do you apply them to every tenderer? If you are litigating: is your complete factual defence, with the supporting documents, already in your defence memorandum, or are you holding something back for later? And do you realise that what you raise only in your final memorandum escapes contradiction and the audit office’s examination, and may therefore be disregarded?
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 →