No technical sheets, no comparable offer: the Council of State confirms that the police zone rightly set aside CIT Blaton’s bid as substantially irregular
CIT Blaton challenged its exclusion from the promotion contract for the redevelopment of a police building on the rue de Tritomas, arguing that its offer warranted at most a lower score rather than rejection for substantial irregularity; the Council of State held that the absence of the technical sheets — needed to assess the ‘technical quality’ award criterion (30%) — made a comparison of the offers impossible and thus entailed absolute nullity, and rejected the action.
What happened?
On 25 October 2010, the police council of the Uccle — Watermael-Boitsfort — Auderghem zone (PZ 5342) launched a works promotion contract (marché de promotion) by general call for tenders with European publicity for the redevelopment of the building at rue de Tritomas 7 in Watermael-Boitsfort, intended for the operational police services, for an estimated amount of 6,500,000 euros incl. VAT. On 29 March 2011, six offers were opened: J. Delens (5,138,826.86 euros), In Advance-Koeckelberg (4,705,801.71 euros), CFE (6,542,099.67 euros), CITEB/CIT Blaton (4,830,989.98 euros), De Waele (4,449,114.30 euros) and Franki-Fabricom (4,123,648.06 euros), each incl. VAT. The contract was to be awarded to the economically most advantageous offer on four criteria: the overall architectural concept (30%), the total amount of works and financing costs (30%), the technical quality (30%) and the execution times (10%). By decision of 27 June 2011, the police college awarded the contract to CFE Brabant and declared several offers, including CITEB’s, irregular. Following a suspension decree of the Minister-President of the Brussels-Capital Region (administrative supervision) of 4 August 2011, the college withdrew that decision on 12 September 2011 and took a new award decision, in which CITEB was not selected for want of a declaration on honour. CITEB pointed out on 8 November 2011 that it had indeed attached that declaration to its original copy; finding that a material error had been made, the college ‘amended’ its 12 September decision on 14 November 2011: it selected CITEB after all, but rejected its offer for the irregularities it identified, thus reverting, for CITEB, to its initial position of 27 June 2011. That decision of 14 November 2011 — together with the coordinated decision of 12 September 2011 — was the subject of the annulment action. In its first plea, CITEB argued that the absence or insufficiency of a technical description and of technical sheets (its offer contained only sheets for ceilings, partitions and sanitary equipment) was not in itself, let alone a substantial, irregularity, but could at most justify a lower score on the award criteria. The Council of State recalled that article 110, § 2, of the royal decree of 8 January 1996 distinguishes two regimes: absolute nullity for offers not conforming to the essential prescriptions of the specifications — including those whose breach affects the comparability of the offers or the equality between bidders — and, beyond that, a relative nullity in which the authority has a broad discretion and the Council sanctions only manifest error of assessment. Here, CITEB’s offer contained only the technical sheets for ceilings, partitions and sanitary equipment, whereas the full redevelopment of a building involves much more. Although the documents listed in article 8 of the specifications were not prescribed on pain of absolute nullity, the Council held that the absence of the technical sheets did taint the offer with irregularity, and that those sheets were essential because they were to serve in scoring the third award criterion — technical quality. Since an effective comparison of CITEB’s offer with the others thereby became impossible, this was an irregularity striking the offer with absolute nullity. The police zone had thus lawfully justified its decision to set the offer aside. As that decision was already lawfully founded on the ground vainly criticised by the first plea, the two other pleas — which, even if well founded, could not lead to annulment — did not need to be examined. The action against the award decision itself was, moreover, inadmissible for want of a plea formulating a grievance specifically against that decision. The Council rejected the action and placed the costs, assessed at 175 euros, on CIT Blaton. The judgment was delivered on 14 May 2014 by the VIth chamber (president Odile Daurmont, councillors of State Imre Kovalovszky and David De Roy, registrar Vincent Durieux).
Why does this matter?
The judgment sharply illustrates the pivotal rule of the former procurement law: the distinction between absolute and relative nullity of an offer under article 110, § 2, of the royal decree of 8 January 1996. Not every missing document renders an offer absolutely void; for documents not prescribed on pain of nullity, the authority has a broad margin and the Council intervenes only for a manifest error of assessment. But as soon as a shortfall affects the comparability of the offers or the equality between bidders, the regime tips into absolute nullity — and that is precisely where CIT Blaton was caught. The technical sheets were no formality: they were the basis for scoring the ‘technical quality’ award criterion (30% of the weighting). Without them, the zone could not assess CIT Blaton’s offer on an equal footing with the others, so the refusal was lawful. The reasoning has since been carried forward in the post-2016 framework, but the underlying logic still holds: the authority determines, with reasons and in the light of the file, whether a deviation affects comparability and is therefore essential. The judgment also illustrates two procedural classics — an award decision can remain lawful on a single sufficient ground, leaving other pleas unexamined, and an action against the award itself is inadmissible if no specific grievance is raised against it — and it recalls that a promotion contract is awarded on the best price-quality ratio: here the contract went to the most expensive offer (CFE Brabant, 6.54 million euros), not the lowest price.
The lesson
For bidders: supply every document the authority needs to assess your offer on the award criteria — even where the specifications do not expressly impose it ‘on pain of nullity’. A shortfall affecting comparability with the other offers or equal treatment leads to absolute nullity, not to a milder lower score; technical sheets feeding a weighted quality criterion are such an essential item. Do not count on an incomplete technical description costing you only points: it can knock you out of the race entirely. For authorities: if you wish to set aside an offer for a missing item, give concrete reasons why the breach affects the comparability of the offers or the equality between bidders — that is what makes a prescription ‘essential’ and sustains absolute nullity. And guard your own coherence: the history of this contract (award, supervisory suspension, withdrawal, new decision, correction of a material error) shows how a file becomes shaky when selection and regularity assessments are not kept clean.
Ask yourself
Does your offer contain every item the authority needs to assess each award criterion — in particular the technical sheets feeding a weighted quality criterion? Do you realise that a shortfall affecting the comparability of the offers or the equality between bidders leads to absolute nullity, not merely to a lower score? As an authority: do you give concrete reasons why a missing item affects comparability or equality, so that it sustains the exclusion as an essential prescription? When you also challenge the award decision itself, do you raise a grievance directed specifically against that decision — failing which inadmissibility looms?
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 →