‘D1’ instead of ‘D’: ILVO ignores the correction of a typo in the accreditation application and sees the award of its dairy research barn suspended
VL-Trac submitted the lowest bid, 1,888,852.56 euros, for building a research barn for dairy cattle, but did not yet hold the required class 5 category D contractor accreditation and enclosed an application that mistakenly referred to ‘subcategory D1’; although VL-Trac corrected that typo by email two weeks later and ILVO knew of the correction, it rejected the bid because the application ‘did not concern the minimum required accreditation’, and the Council of State suspended the award to Altez (1,901,584.60 euros) because the authority had not established the ground for rejection with the required care.
What happened?
The Own Capital of the Institute for Agricultural and Fisheries Research (ILVO) launched an open tender for building a research barn for dairy cattle and laying additional yard paving. The specifications required contractor accreditation in class 5, category D. Four contractors bid: VL-Trac (1,888,852.56 euros), Altez (1,904,670.87 euros), Willy Naessens Industriebouw (2,065,799 euros) and Lafaut (2,129,982.74 euros). VL-Trac enclosed with its bid a letter of 19 January 2012 stating that it was ‘currently not accredited in class 5, subcategory D1’, asking that the enclosed documents be forwarded to the Contractors’ Accreditation Commission for an equivalence review or as an accreditation application, and noting that a promotion file was being filed with the Commission ‘at about the same time’. On 3 February 2012 VL-Trac emailed ILVO: on review, a clerical error had been found in the covering letter — it said ‘cat D1 class 5’ but should read ‘cat D class 5’. The award report of 20 February 2012 nonetheless stated that VL-Trac lacked the required accreditation and that its application concerned ‘accreditation in class 5, subcategory D1, which does not correspond to the minimum required accreditation’; because the existing barn no longer met the minimum standards for housing test animals and the authority needed new infrastructure as soon as possible, the bid was excluded from further examination. ILVO awarded the contract to Altez for 1,901,584.60 euros and informed VL-Trac by registered letter of 14 March 2012 that its bid had been found irregular. VL-Trac applied for suspension under extreme urgency on 23 March 2012; Altez intervened. Under article 65/15 of the Act of 24 December 1993 only the seriousness of the plea had to be examined. VL-Trac alleged breach of article 3, § 1, 2° of the Act of 20 March 1991, of the duty to state reasons and of the duty of care: ILVO had not awaited the regional minister’s decision on its accreditation, had not examined whether at the time of the award it had proved compliance with the accreditation conditions, and had disregarded the correction of 3 February. ILVO replied that VL-Trac had not provided that proof at bid opening or at award, that it had ‘simply stated the wrong category’, that given the urgency the authority could not wait for a contractor ‘evidently stumbling’ towards accreditation, and that on 22 February 2012 it had itself enquired about the accreditation status — which showed that not even an opinion existed yet. Altez went further: the difference between D1 and D was substantive, not clerical, so the email of 3 February was an amendment of the bid that did not meet the formal requirements of articles 81ter and 105 of the Royal Decree of 8 January 1996 (registered mail) and could not be accepted. The Council of State read the ground for rejection as a combination: no further delay was possible, because VL-Trac lacked the accreditation and its application did not concern the required one. But on that second point ILVO had been warned on 3 February that ‘D1’ should read ‘D’, so the application did concern the required accreditation; and ILVO had evidently taken good note, since in its enquiry of 22 February (document 14 of the administrative file) it itself asked whether VL-Trac ‘currently holds class 5 category D accreditation’. The Council did not follow Altez’s argument that the correction was an irregular amendment of the bid: the context and the words ‘Required accreditation’ next to ‘Re:’ showed that the application of 19 January was from the outset intended to prove the accreditation required for the works — and ILVO had in any case not rejected the bid on that ground. It had ‘simply disregarded’ the correction and thereby failed to establish the ground for rejection at the selection stage with the required care. To that extent the plea was serious. The Council admitted the intervention, suspended the award to Altez under extreme urgency and ordered Altez to pay the costs of its intervention (125 euros).
Why does this matter?
The judgment is a compact lesson in care at the qualitative selection stage. ILVO had a seemingly strong position: the lowest bidder lacked the required accreditation, and the Act of 20 March 1991 allows award only to accredited contractors or those who prove they meet the conditions. Yet the award falls, because the authority used in its reasoning a fact it knew was no longer true. The application said ‘D1’, the bidder had corrected that two weeks before the award report, and the authority had even incorporated the correction in its own enquiry to the accreditation commission — only to ignore it in the award report. For the Council that is no detail: a ground based on an outdated finding is not carefully established, and that suffices to make the plea serious. What the Council did not do is equally important. It did not rule on whether ILVO, given the urgency, could refuse to wait for the minister’s accreditation decision, nor on whether VL-Trac had actually provided the proof under article 3, § 1, 2°. Those questions remained open because the rejection was already careless on another point. The lesson for authorities is therefore not that they must wait for a pending accreditation, but that their reasons must match what they know at the time of the decision. Finally, the judgment tempers the reflex to treat every correction by a bidder as a prohibited amendment of the bid: correcting an obvious typo in a covering document that was aimed at the required accreditation from the outset is not an amendment — certainly not where the authority itself did not base the rejection on that ground.
The lesson
For bidders: if you submit a selection document containing an error, correct it immediately and in writing, and keep proof that the authority received the correction — VL-Trac won this case on one email of 3 February and on the enquiry the authority itself made afterwards. In an accreditation or equivalence application, always state literally the accreditation the specifications require and refer to the relevant clause, so that there can be no doubt about the object of your application. And be aware that a pending accreditation does not automatically protect you: the Council left open whether the authority had to wait for it. For contracting authorities: before rejecting a bid, check that every fact in your reasoning is still true on the day of the decision, and incorporate corrections you have received — even if you could reject the bid on other grounds. Do not invoke urgency as a ground for rejection; urgency may explain why you do not wait, but not why a fact is other than it is. And if you consider a correction to be in reality an amendment of the bid, say so expressly in the decision; an intervening party cannot make that argument for you afterwards.
Ask yourself
Does the accreditation stated in your application or declaration match literally what the specifications require? Did you correct a discovered error immediately in writing, and can you prove the authority knew of the correction? As an authority: did you check before the award that the facts in your award report were still current, especially after correspondence with the bidder? Do you use urgency as a reason to reject a bid, or only as a reason not to wait any longer? And if you regard a correction as a prohibited amendment of the bid, is that stated as a ground in your decision?
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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 →