An offer is assessed as it stood at the opening: the Council annuls the VDAB's award of the office-supplies contract to Lyreco
The Council of State annuls the VDAB's decision to award a framework agreement for office supplies and computer supplies to Lyreco Belgium, because at the moment of opening Office Depot's offer did contain a validly submitted inventory and the VDAB wrongly set that offer aside as irregular instead of assessing it as it stood at the opening.
What happened?
The VDAB (the Flemish public employment and vocational training service) launched a supplies contract for the delivery of office supplies and computer supplies to its services, by general call for tenders. The contract was published in the Belgian Bulletin of Tenders on 25 July 2012 and in the Official Journal of the European Union on 28 July 2012, estimated at 1,000,000 euros per year including VAT and awarded for four times one year. Offers could be submitted only electronically via the e-tendering website, in accordance with article 81quater, § 1, of the Royal Decree of 8 January 1996. Point 2.7 of the specifications provided that the absence or incorrect completion of certain documents — including the tender form and the inventory — could lead to the offer not being retained. Office Depot International had submitted an inventory on 18 September 2012. Just after the final submission time — at 11.01.16, as shown by the ‘withdrawn documents’ section of the opening record — the bidder uploaded a new version of the inventory and withdrew the original inventory. The VDAB then declared the offer materially irregular on a twofold basis: the new inventory had been received too late and had to be set aside (article 104, § 2, of the Royal Decree of 8 January 1996), and the original inventory had been removed by the bidder, so that, according to the VDAB, a validly submitted price list was missing. The contract was then awarded to Lyreco Belgium; the reasoned award decision of 20 December 2012 was communicated to Office Depot by letter of 21 December 2012. Office Depot brought an action for annulment and initially also sought damages and an injunction ordering the VDAB to take a new decision within one month, indicating the reasons it could no longer use. On those additional points the VDAB raised a plea of jurisdiction, which the auditorate found ‘evidently founded’; because Office Depot, in its reply, sought only annulment, the Council held that it had limited its action to that object and waived the rest. By interlocutory judgment no. 226,747 of 13 March 2014 the debate had been reopened and the case continued under the ordinary procedure. The single ground was drawn from breaches of articles 15 and 16 of the law of 24 December 1993, articles 104 and 105 of the Royal Decree of 8 January 1996, articles 2 and 3 of the law of 29 July 1991 on the express statement of reasons, articles 10 and 11 of the Constitution and the principles of good administration. Office Depot acknowledged that its new inventory had been submitted too late, but argued that the withdrawal of the original inventory had also occurred only after the opening and so, under articles 104, § 2, and 105 of the Royal Decree, could not be taken into account; the VDAB should therefore have proceeded on the basis of the original, validly submitted inventory, so that there could be no question of a missing price list. The VDAB defended itself by asserting that it was technically impossible to take the first inventory into account: when a document is withdrawn in the e-tendering application it is definitively removed and is no longer visible even to the contracting authority, including in the case of a late withdrawal; moreover the bidder had not produced a new, signed submission report after the change. The Council did not follow that defence. First, it was established that the original inventory was indeed present in the e-tendering system at the moment of opening; the offer was therefore complete at that moment, and the VDAB's reasoning that the offer was incomplete at that crucial moment was factually incorrect. The argument that it was factually impossible to view the offer as submitted at the opening was not accepted in the light of the technical explanation of the e-Procurement helpdesk; the VDAB did not even claim to have made any effort to view that offer, although it had the means to do so and had not used them. By refusing to include the offer as submitted at the opening in its assessment, the VDAB did not show that it had awarded the contract to the economically most advantageous regular offer. The Council did not accept that Office Depot had submitted two offers: at the moment of opening there was only one offer. Any technical difficulties in viewing that offer, and the fact that the VDAB bore no ‘fault’ for them, were irrelevant; the established illegality was that Office Depot's offer — which was not shown to be incomplete at the opening — was wrongly not assessed. The ground was founded. The Council annulled the award decision of 20 December 2012, recorded the waiver for the remainder and ordered the VDAB to pay the costs of the action, set at 175 euros.
Why does this matter?
Almost all Belgian public contracts today run through electronic submission, and this judgment lays bare a fundamental principle that is easily lost in that digital context: an offer must be assessed as it stood at the moment of opening. What a bidder does afterwards — adding, changing or withdrawing a document — cannot retroactively render a validly submitted, complete offer incomplete. Articles 104 and 105 of the Royal Decree of 8 January 1996 bind not only the bidder but also the authority: a change or withdrawal after the opening is late and may not be taken into account, not even to the bidder's detriment. Equally important is that the authority may not hide behind a technical limitation of the platform. The VDAB argued that the withdrawn document had definitively disappeared, but the Council held that, in the light of the e-Procurement helpdesk's explanation, it had the means to consult the offer as submitted at the opening and had not used them. The authority bears an active duty of investigation: it must make the effort to assess the regular offer effectively, and cannot confine itself to noting that a document was ‘no longer visible’. That the authority itself bore no ‘fault’ for the technical course of events makes no difference: the illegality lies in failing to assess an offer that was complete at the opening.
The lesson
For bidders: touch nothing in the e-tendering file after the final submission time. A late upload does not count, and a late withdrawal of a validly submitted document can put you in a dangerous position — even though an authority may not, strictly speaking, use that withdrawal against you, you force it into a dispute you could have avoided. If you want to change something before the deadline, sign a new submission report, because without that signature the change is treated as not submitted. For authorities: assess every offer as it stood at the moment of opening, and ignore what the bidder did afterwards. Do not hide behind the assertion that a withdrawn document is ‘no longer visible’: check what technical possibilities the platform and the e-Procurement helpdesk offer to consult the original offer, and document that effort. Whoever sets an offer aside as irregular on a factually incorrect basis risks having the whole award fall.
Ask yourself
Suppose that, in an electronic procedure, a bidder uploads or withdraws a document just after the final time. Do you know which version of the offer existed at the exact moment of opening — and is that the version you are assessing? As an authority, do you disregard actions the bidder took after the opening, even where they would work to its detriment? Before declaring an offer irregular for a missing document, have you really used every technical possibility — if need be with the e-Procurement helpdesk — to consult the offer as submitted at the opening, and have you recorded that effort? And as a bidder: did you, before the deadline, confirm every change with a signed submission report, and do you then leave the file untouched?
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 →