Declaring a bid 'substantially irregular' requires more than a copy-paste sentence
The Council of State suspended the award because IFAPME declared Froireca's bid irregular using a generic phrase about 'comparability' and 'competition', without concretely explaining why the deviation was material — and what was added later in pleadings does not count.
What happened?
IFAPME issued a works tender for a vocational training platform in Perwez. Lot 4 concerned cold rooms. The specifications required polyester wall panels (composite with glass fibre), with detailed thickness, lambda values and surface finish. Four firms bid. Froireca offered galvanized steel panels coated with a 150 µm polyester film. On 3 April 2015, IFAPME declared Froireca's bid 'materially irregular' and awarded to Procool. The motivation, in essence: this material irregularity 'prevents effective and objective comparison of bids and is liable to distort competition and equal treatment'. Froireca appealed to the Council of State under extreme urgency. In its pleadings IFAPME added concrete arguments: steel is roughly half the price of polyester, and posts 15.007 and 15.008 represent close to 20% of lot 4's value. The Council of State nonetheless suspended the award. Article 95, §3 of the Royal Decree of 15 July 2011 requires the contracting authority to demonstrate concretely — in the decision itself — why a deviation is 'essential'. The generic formula 'distorts comparability and competition' describes the consequences of substantial irregularity, not its reasons. And critically: the formal duty to state reasons must be fulfilled at the moment of the decision. Gaps cannot be filled later through procedural pleadings.
Why does this matter?
For bid managers: if a contracting authority declares your offer irregular with a generic formula and no facts, you stand a strong chance in an urgent suspension procedure. For contracting authorities: it is tempting to be brief in the decision and keep the details for a possible procedural defence. That does not work. What is not in the award decision does not count — even if it is factually correct.
The lesson
When weeding out an offer as 'substantially irregular': write out in the decision itself, concretely, why this deviation, in this contract, makes a material difference. Numbers, percentages, functional requirements, price impact. A generic sentence about 'equal treatment' or 'competition' is not motivation, it is the definition.
Ask yourself
Take an award decision where you rejected an offer. Cross out any sentences that could appear in any other case ('distortion of competition', 'equal treatment', 'comparability'). What remains that is specifically about THIS offer and THIS deviation? If it's fewer than five sentences, go back and rewrite.
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 →