Five of six bidders excluded, the most expensive wins: 'site-visit certificate not compliant' is no statement of reasons
The social-housing company Le Logis Châtelettain excluded the five cheapest bidders for the renovation of 108 houses in Châtelineau on the ground of a non-compliant health-and-safety certificate and awarded the contract to the sixth and most expensive, De Cock, for 2.79 million euros; the Council of State suspended that award under extreme urgency because the reason given — 'certificate of visit to the future site not compliant' — did not allow the lowest bidder, Hullbridge, to understand what was wrong with its certificate, the real reason (no visit in the presence of the contracting authority) surfacing only in the authority's written observations.
What happened?
Le Logis Châtelettain, a social-housing cooperative, published on 12 July 2011 an open tender for the renovation of 108 houses in the Cité des Gaures at Châtelineau: waterproofing, equipment, security, roofs and insulation, with an estimated execution period of 350 days. The sole award criterion was the lowest price. The specifications (S.W.L./T/2002) required bidders to attach the completed health-and-safety coordination annexes to their tender, including a pre-printed 'certificate of acknowledgement of the general health and safety plan' in which the bidder declares having visited the future site on a given date 'in the presence of the maître d'œuvre'. Hullbridge Associated visited the site on 25 August 2011. At the opening on 1 September 2011 it ranked first at 2,048,376.73 euros excluding VAT, followed by the consortium Sequaris-Palumbo (2,259,063.84 euros), Cobardi (2,470,767.16 euros), Bémat (2,751,074.13 euros), Vandezande (2,762,829.81 euros) and, sixth and most expensive, De Cock (2,788,246.18 euros). On 24 November 2011 the board of directors, following the designer's report, decided not to select the first five bidders for 'non-compliance with the requirements of the general health and safety plan' — for Hullbridge specifically: 'certificate of visit to the future site not compliant' — and to award the contract to De Cock, the only tender found regular, for 2,788,246.18 euros excluding VAT or 2,955,540.95 euros including 6 % VAT. Hullbridge, unaware of any of this, wrote on 23 December 2011 and again on 24 February 2012 to ask when the works would start, referring to its 'good position in the ranking'. Only by letter of 27 February 2012 did it learn that the contract had been awarded to De Cock on 24 November 2011, with as sole reason the same sentence about the non-compliant certificate, and with a fifteen-day period for an application for suspension. On 1 March 2012 the authority faxed it, on request, the decision of 24 November 2011. Hullbridge lodged an application for suspension under extreme urgency on 12 March 2012, directed, on its face, against the letter of 27 February 2012. De Cock intervened on 21 March 2012; the hearing took place on 23 March 2012. The authority first objected that the letter of 27 February is not a challengeable decision but a mere information letter, at most a confirmation of the decision of 24 November 2011. The Council agreed on that point, but held that the object of the application — the award decision of 24 November 2011 — was clearly identifiable and that the confusion could not have misled the other parties, as their own pleadings showed; the objection was dismissed. On the merits, the Council found that the reason 'certificate of visit to the future site not compliant', used word for word for three other bidders as well, did not allow Hullbridge to understand in what respect its certificate was non-compliant. Only the authority's written observations revealed the complaint: Hullbridge had not visited the site in the presence of a representative of the designer or the authority, whereas the form required a declaration 'in the presence of the maître d'œuvre' — and it would be absurd, the authority argued, to read that form as requiring the company to visit in the company of itself. That explanation, however well-founded, does not appear in the contested act and cannot cure the lack of formal reasons. That Hullbridge itself knew it had not been accompanied changes nothing: it could not know whether that fact alone explained its non-selection or whether other defects also played a role. The plea was held to be serious. In the balancing of interests, the authority and De Cock argued that a suspension would delay the renovation of housing for 'the most vulnerable people'. The Council rejected that: a formal reasoning defect can be remedied at short notice by redoing the act, and the alleged urgency was contradicted by the fact that the contract awarded on 24 November 2011 had still not been concluded on 27 February 2012. The Council admitted De Cock's intervention, suspended the award decision of 24 November 2011, ordered immediate execution and notification by fax, and reserved the costs.
Why does this matter?
The judgment sharpens three points that are as topical today as in 2012. First, the duty to state formal reasons when excluding tenders: a boilerplate sentence copied for four bidders at once ('certificate not compliant') is not a statement of reasons. The authority had a perfectly defensible ground — the visit had to take place in the presence of the contracting authority or the designer, and it had not — but because that ground was not in the decision, the award was suspended. The Council expressly refuses to accept that the bidder 'knew anyway': an excluded bidder must be able to infer from the act itself whether that single fact sufficed or whether other defects were involved. Second, the identification of the contested act. Hullbridge directed its application against the notification letter of 27 February 2012 rather than against the award decision of 24 November 2011; the Council saved the application because the object was clear to everyone. That is a pragmatic but not a guaranteed outcome — it remains an avoidable risk. Third, the balancing of interests: the social-housing argument ('homes for the most vulnerable') made no impression, precisely because the authority itself had waited three months to conclude the contract and inform the bidders. Whoever invokes urgency must have behaved accordingly. Finally, the judgment illustrates a painful consequence of formalism: by excluding five tenders, the contract became 740,000 euros more expensive than the lowest bid — a difference the authority will have to justify in a new, properly reasoned decision.
The lesson
For contracting authorities: if you exclude a tender because a certificate, declaration or annex is not compliant, write in the decision itself what is non-compliant and why that makes the tender irregular. A copy-paste sentence used for several bidders is a red flag. Bear in mind too that every month that passes between award and notification erodes your urgency argument in the balancing of interests. For bidders: read pre-printed certificates literally — 'in the presence of the maître d'œuvre' means someone from the contracting authority or the designer must be there, not you alone — and have the authority itself confirm the site visit. If you receive a rejection with a meaningless statement of reasons, that is in itself a serious plea for a suspension under extreme urgency. But direct your application against the actual award decision, not the covering letter; the Council was lenient here, but do not count on it.
Ask yourself
Can an excluded bidder infer from your decision itself which concrete defect made its tender irregular, or does it only read a formula you also used for three other bidders? Do you know exactly what the pre-printed health-and-safety or site-visit certificate makes you declare, and do you have confirmation from the authority that the visit took place under those conditions? Have you directed your application against the award decision itself and not against the notification letter? And as an authority: how long did you wait to conclude the contract and inform the bidders, and can you then still credibly invoke urgency against a suspension?
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 →