Coastal maintenance, a missing safety document and a specification item marked ‘essential’: why the signed statement of intent did not stop the rejection
The temporary company ABOG – Norré-Behaegel – Benelux Diving Corporation challenged, under extreme urgency, the rejection of its bid for maintaining the coastal estate in the East Coast District, but the Council of State held that the Coast Division was entitled to declare its bid substantially irregular because the safety document required by article 30 of the Temporary and Mobile Worksites Decree and by article 81 of the specification — marked ‘essential’ — was missing, a shortfall the signed statement of intent could not cure.
What happened?
The Agency for Maritime Services and Coast – Coast Division launched an open call for tenders for a works contract for ‘Estate maintenance – East Coast District. Lease period 2014-2017’, under specification no. 16EH/13/16. The notice appeared in the Bulletin of Tenders of 18 September 2013, with corrigenda of 20 and 27 September and 18 October 2013. For the first lease year the specification estimated the works and supplies at 1,500,000 euros, VAT included. The contract was to be awarded on two criteria: the tender price (70 points) and the quality of the emergency plan (30 points). At the opening of bids on 13 November 2013, four bidders had submitted, including the temporary company of ABOG, Benelux Diving Corporation and Norré-Behaegel. By registered letter of 24 December 2013, the Flemish Region informed that temporary company that its bid had been found substantially irregular and rejected, as it did not comply with article 30 of the Royal Decree of 25 January 2001 on temporary or mobile worksites (KBTM). According to the attached opinion of safety coordinator IBEVE, the document referring to the health-and-safety plan and describing how the works would be carried out to take that plan into account was missing, and the bidder's general safety file gave no answer to the risks described in the plan. The temporary company sought suspension under extreme urgency. In a first plea it argued that the version of article 30 KBTM in force since 1 July 2013 bars the authority from prescribing, without additional justification by the design coordinator, that the documents referred to in the second paragraph, 1° and 2°, be attached to the bid. The Council of State rejected that reading: the last paragraph of article 30 does not deprive the authority of the freedom to impose such a requirement but only obliges it to do so where the design coordinator demonstrates the need; the absence of such express justification therefore does not prevent the authority from lawfully including the requirement. In a second plea the temporary company argued that the rejection was inadequately reasoned and that no absolute nullity attached to the failure to produce the documents. The Council held that the contested decision did contain its reasons — as shown by the extensive criticism the company itself levelled at them — so the duty to state reasons was met. On the merits it found that article 81 of the specification (p. 29) expressly required attaching the document and the separate price calculation of article 30, second paragraph, 1° and 2°, KBTM, and called that attachment ‘essential’. The documents attached by the temporary company — a signed statement of intent, a ‘health-and-safety plan undertaking’ referring to an own general plan that appeared nowhere in the file, a separate price calculation and an emergency plan — could not replace that document. Thus, under the fill-in document ‘Separate pricing and method’, part 2 ‘Method for critical phases’, the bidder had to state its preventive measures for particular risks such as work with a drowning risk, work in tourist areas and excavation work — which the temporary company had not done; the emergency plan pursued a different purpose. The company did not make it plausible that its documents, even together with the specification and the health-and-safety plan, gave an explicit answer to all the specific risks. Since article 81 marked the attachment as ‘essential’ and it was not shown why its absence could then not be treated as a substantial irregularity, the second plea was not serious either. The Council rejected the application and ordered the applicants to bear the costs of the suspension application, set at 525 euros, one third each.
Why does this matter?
Many bids fall not on price or technical content but on a missing document — and this judgment shows how strictly the Council of State treats that where the specification marks an item as ‘essential’. On temporary or mobile worksites, article 30 KBTM requires the bidder to attach to its bid a document describing how it will carry out the works while respecting the health-and-safety plan, plus a separate price calculation for the preventive measures. Anyone who thinks a general, signed statement of intent — ‘I have read the plan and will comply’ — replaces that concrete, risk-specific description is mistaken: this is a substantive document that must show, for each particular risk (here including drowning hazard, work in tourist areas and excavation), what measures the contractor takes. The judgment also confirms that an authority may mark a document as ‘essential’ and sanction its absence as a substantial irregularity, without the KBTM or the specification having to spell out an ‘absolute nullity’. And it recalls how high the bar is in interim relief: a mainly documentary and technical dispute that exposes no manifest illegality is rarely a serious plea.
The lesson
Before submitting, run through the specification's list of items marked ‘essential’ or ‘on pain of rejection’ and supply them exactly as required. On a temporary or mobile worksite that means: attach the article 30, second paragraph, 1° KBTM document that concretely and risk-specifically describes how you will carry out the works while respecting the health-and-safety plan, and the separate price calculation for the preventive measures. Actually complete the fill-in documents (such as ‘Method for critical phases’) for every particular risk mentioned; do not merely refer to an ‘own general plan’ and then fail even to attach it. A signed statement of intent and an emergency plan do not cover this obligation. As the authority, the lesson is that you may unambiguously mark such documents as essential and sanction their absence, provided your rejection decision states the reasons and the safety coordinator's opinion. To challenge the rejection in interim relief as a rejected bidder, aim at a manifest illegality, not at a technical discussion requiring thorough investigation.
Ask yourself
Have you combed the contract documents for items imposed as ‘essential’ or on pain of rejection, and do you supply them exactly as required? Do you know that article 30 KBTM demands more than a statement of intent, namely a concrete document describing, for each particular risk, how you comply with the health-and-safety plan, plus a separate price calculation? Have you actually completed the fill-in documents (such as ‘Method for critical phases’) for every risk mentioned, rather than referring to an unattached general plan? And as an authority: does your rejection decision state the concrete reasons and the safety coordinator's opinion, so that the substantial irregularity holds up?
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 →