Herve writes ‘on pain of absolute nullity’ into its own specifications — then asks the winning bidder to send in the missing safety plan after all: award annulled
The city of Herve had expressly provided, in an addendum to its specifications, that bidders had to attach their specific safety and health plan to their tender ‘on pain of absolute nullity of their tender’; when it turned out that the lowest bidder, Corman-Halleux, had not attached that plan, the city requested it after the opening of tenders and awarded the contract anyway — whereupon the Council of State annulled the award, because the city no longer had any margin of appreciation and had breached equality between bidders.
What happened?
On 29 June 2009 the municipal council of Herve approved the full project for phase II of the renovation works to the Collège royal Marie-Thérèse — the Marie-Thérèse administrative centre — drawn up by architect Philippe Henry, with specifications, plans and an estimate of 2,096,461.08 euros excl. VAT (2,536,717.91 euros incl. VAT). The council chose the open procedure. Following a remark from the supervisory authority, the college of mayor and aldermen adopted an addendum to the specifications, ratified by the municipal council on 21 September 2009. That addendum clarified article 90 of the specifications: in accordance with article 30 of the Royal Decree of 25 January 2001 on temporary or mobile construction sites, bidders had to attach to their tender, ‘on pain of absolute nullity of their tender’, an annex describing how they would carry out the works in the light of the safety and health plan, together with a detailed calculation of the cost of the prevention measures and means. The contract notice was published on 18 September 2009. At the opening on 12 October 2009 three tenders had been submitted: G. Corman-Halleux at 1,926,066.53 euros excl. VAT, T.W.T. at 2,032,430.73 euros excl. VAT, and the temporary association Sogepar-Diedericks at 2,157,543.22 euros excl. VAT. The safety coordinator, Safetech, noted drily in its report of 22 October 2009: ‘PPSS not submitted’ — Corman-Halleux’s specific safety and health plan was missing — and advised requesting it before any award. The project author confirmed this on 26 October 2009. The college therefore sent Corman-Halleux a registered letter on 28 October 2009; the company produced the plan on 30 October 2009. On 10 November 2009 the college awarded the contract to Corman-Halleux for 2,331,491.85 euros incl. VAT. That decision, communicated by letter of 22 January 2010, is the contested act. ARTES T.W.T. sought its annulment on 19 March 2010. Before the Council, the city relied on the classic distinction in article 110, § 2 of the Royal Decree of 8 January 1996: ‘absolute nullity’ would not automatically entail exclusion, since only a substantial irregularity compels an authority to set a tender aside, and it claimed to retain a broad discretion as to what is substantial. It pointed out that the price calculation for the prevention measures was in fact enclosed, that the omission was probably an oversight, that the ranking was unaffected, and that article 4.1.4 of the general safety and health plan appeared to suggest that the plan was due later. The applicant replied that article 30 of the Royal Decree of 25 January 2001 is a rule of public policy, that the addendum forms an integral part of the specifications, that article 4.1.4 plainly concerns subcontractors at the execution stage, and — tellingly — that although Corman-Halleux’s plan was dated 6 October 2009, most of its pages bore the date of 29 October 2009, well after the opening of tenders. The Council of State traces the legislative history from article 25 of the Royal Decree of 14 October 1964 to article 110, § 2 of the Royal Decree of 8 January 1996 and concludes that ‘absolute nullity’ is precisely the sanction for an irregularity which the contracting authority has itself identified as substantial. Since the specifications required the annex on pain of absolute nullity, Corman-Halleux’s tender had to be declared irregular and the city no longer had any discretion: it could not request the plan after submission, and by granting Corman-Halleux more time than the other bidders it disregarded equality between bidders. The single plea is founded. The award decision of 10 November 2009 is annulled; the costs, fixed at 175 euros, are borne by the city.
Why does this matter?
Contracting authorities write the words ‘on pain of nullity’ into their specifications almost on autopilot, assuming they can still decide later how strict to be. This judgment closes that back door. By providing itself that a missing specific safety and health plan renders the tender absolutely void, the city of Herve wrote away its own margin of appreciation: the irregularity was thereby substantial, and the only possible outcome was to set the tender aside. The argument that the omission was ‘merely’ an oversight, that the price calculation was enclosed and that the ranking would have been the same anyway does not save the award — precisely because the sanction in the specifications had already settled the debate about whether the irregularity was substantial. Moreover, allowing the correction after the opening of tenders breached equality in its own right: Corman-Halleux effectively gained three extra weeks to draw up a document the others had to enclose with their tenders — and the date of 29 October on most pages of the plan left little to the imagination. The judgment is also a reminder that the safety obligations under the Well-being Act and the Royal Decree on temporary or mobile construction sites are rules of public policy, not administrative red tape to be handled flexibly. Finally, the case shows that the patere legem principle is no empty formula. An authority may make its specifications strict, but it is then bound by that strictness — even where, as here, it costs it the lowest tender.
The lesson
As a contracting authority: only write ‘on pain of absolute nullity’ into your specifications if you are prepared to set a tender aside on that ground, even the cheapest one. That formula makes the requirement essential and strips you of any margin of appreciation; you can then no longer request the missing document. If you consider an obligation important but not fatal, phrase it without a nullity sanction and retain your discretion under article 110, § 2. Watch, too, the interplay between your specifications and their annexes: a clause in the general safety and health plan dealing with subcontractors at the execution stage does not undo what the specifications impose on bidders. As a bidder: actually enclose every document the specifications require under pain of nullity, and do not count on being allowed to supplement later — the authority is not even permitted to let you. If a competitor is allowed to send something in afterwards, you have a strong plea: request the administrative file and check the dates on the document supplied. Here the plan proved to have been largely drawn up after the opening of tenders, making the unequal treatment tangible.
Ask yourself
Do you realise that the words ‘on pain of absolute nullity’ in your own specifications entirely remove your discretion, so that you must set the tender concerned aside? Have you checked that your specifications and the annexes to the safety and health plan do not contradict each other as to what belongs with the tender and what is only due at the execution stage? Do you appreciate that requesting a missing document after the opening breaches equality between bidders as soon as the competitor thereby gains more time than the others? And as an unsuccessful bidder: have you inspected the administrative file and checked the dates on the documents your competitor supplied after the fact?
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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 →