‘See annex TRA’ is not enough: lowest bidder excluded for failing to fill in the seven critical safety phases
The temporary trading company Wegrosan/HMVT-Oranjewoud submitted the lowest of ten bids for Haviland’s container park in Ternat, but completed the mandatory work-method document of the health and safety plan with nothing more than ‘see annex TRA’ — the Council of State finds the exclusion for substantial irregularity prima facie justified: describing the seven critical phases was precisely the objective standard against which all bidders were tested.
What happened?
Haviland, the inter-municipal partnership for the Halle-Vilvoorde district, launched an open tender for the construction of a container park and the access road to a warehouse in Ternat. The special specifications were strict on safety: the bid had to include the documents required by article 30, 1° and 2° of the Royal Decree on temporary or mobile construction sites, and annex 1 of the health and safety plan obliged bidders to describe — on the form itself, signed by them — how they would carry out seven critical phases: from excavating sewer trenches and placing shoring to cutting materials. The specifications warned in plain terms: if the requested information is missing or insufficiently specific, the bid will be declared invalid. Wegrosan/HMVT and Oranjewoud Realisatie, bidding as a temporary trading company, submitted the lowest of ten bids but wrote only ‘see annex TRA’ where the seven phase descriptions belonged, attaching five technical annexes of their own (trench excavation, manual excavation, trench backfilling, PVC sewer laying and linear elements). The safety coordinator advised excluding five of the ten bids as irregular; regarding the applicants’ bid he found that the annex did not match the phases and the documents were not properly and specifically completed. Haviland followed that advice, declared the bid substantially irregular in the tender report of 30 March 2012, and on 26 April 2012 its management committee conditionally awarded the contract to Aannemingsbedrijf Roos, pending approval by the municipality of Ternat and OVAM. Because of that approval round, the decision was notified only on 27 September 2012. Before the Council of State the applicants argued that no clause of the specifications prohibited completing the form by cross-reference, that Haviland should have asked for clarification — there was ample time — and that the notification came six months late. The Council followed none of the three pleas. Annex 1 prescribed the use of the document itself; the applicants did not deny that they had not described the seven critical phases as such and merely asserted that their five annexes ‘could’ correspond to them — without any attempt to explain how, thus leaving the puzzle to the Council. The duty to state reasons in article 65/5, 6° does not oblige a contracting authority to request additional information about alleged irregularities, and an authority that merely applies what the specifications prescribe does not act carelessly. The late notification, finally, may affect the time limit for review but does not touch the lawfulness of the award decision itself. The application for suspension was rejected.
Why does this matter?
This judgment shows in all its simplicity how a tender is lost before a single price is compared. Bidders often treat the health and safety plan as an administrative annex, but where the specifications require a completed work-method document per critical phase and announce invalidity as the sanction, it is a substantial requirement — the ‘objective standard against which the bidders are tested’, in the Council’s words. Three lessons stand out. First: whoever departs from a mandatory template bears the risk that the alternative will not be recognised as equivalent, and must at least show the court concretely how their documents cover the required content — ‘could correspond’ is not an argument. Second: there is no general duty for the authority to have unclear or incomplete bids clarified, not even when half the bids show defects and months are available. Third: a notification that arrives months late is no weapon against the award itself — at most it shifts the time limit for review. That the excluded consortium had the lowest price made the loss all the more painful, but legally irrelevant.
The lesson
For bidders: treat the health and safety plan as an award document, not a formality. Use the form the specifications prescribe, fill in every requested section specifically — here: all seven critical phases — and refer to annexes only where the specifications expressly allow it, with a clear concordance between annex and section. Never count on the authority asking for clarification: it may, but it need not. And if you do go to court, demonstrate point by point how your documents meet the specifications instead of leaving that to the Council. For contracting authorities: a clear specification clause with an announced sanction gives a solid basis to exclude incomplete bids, even the cheapest — and the safety coordinator’s advice, once adopted, becomes part of the reasons for your decision.
Ask yourself
Do you complete mandatory tender forms fully and specifically, or do you rely on references to your own documents? Can you point out exactly, for every requested item — such as the seven critical phases here — where your bid contains the required description? Do you realise the authority is not obliged to ask for clarification, even with plenty of time? And do you know that late notification of the award may shift your time limit for review, but does not make the award itself unlawful?
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 →