'Negotiated procedure without publication' does not make the tender document optional
A bidder argued that the social welfare centre could not apply the standard rules on irregular tenders in a negotiated procedure — and lost on every front: even without those rules, the authority must apply the tender document it wrote itself.
What happened?
The Charleroi social welfare centre (CPAS) launched a negotiated procedure without publication in May 2015 for active and passive patient hoists, estimated at €33,000. The specifications for lot 2 (active hoist) required a minimum lift capacity of 190 kg, an emergency stop button, an emergency descent button, and 'two paired controls: a remote and another on the lift's control panel'. Four firms submitted offers, including LOPITAL BELGIE. The August 2015 award report declared LOPITAL's offer for lot 2 irregular for two reasons: (1) active lift capacity was 200 kg, but passive lift capacity only 150 kg, below the required 190 kg; (2) only a remote control was offered, with no second control on the panel. The CPAS called 'the combination of these two irregularities essential' and awarded the lot to ARJO-HUNTLEIGH. LOPITAL filed an extreme-urgency action with three arguments. First, article 95 of the 15 July 2011 Royal Decree (on irregular-offer review) does not apply to a negotiated procedure without publication, so the CPAS could not declare the offer irregular on that basis. Second, the device can lift 200 kg actively — and since lot 2 covers an 'active hoist', only the active capacity counts. Third, the 'combination of two elements' implies that no single element on its own could justify exclusion. The Council of State rejected all three arguments. On article 95: it indeed did not apply — but that does not release the authority from the principle patere legem quam ipse fecisti or from equal treatment. The tender document stated literally: 'The submitted equipment must necessarily meet all technical and particular conditions [...], failing which the offer will not be examined.' By writing that themselves, the CPAS bound themselves to reject non-conforming offers. On lift capacity: the specifications drew no distinction between active and passive use, so the device had to handle 190 kg in every operating mode. The 150 kg passive limit is thus a real non-conformity. On the 'combination' argument: because the specifications declared every requirement essential, even one non-conformity would have justified exclusion — so the 'combination' framing actually works against the bidder. The action is rejected, with €700 procedural compensation.
Why does this matter?
Many bid managers still assume that a negotiated procedure is 'softer' than an open one — that specifications are less strict, that there is room for clarification or remediation. This judgment makes clear that intuition is wrong. The legal regime for the irregularity review may differ (today article 76 of the 2017 placement decree, with distinctions between open and negotiated procedures), but the principle that an authority must comply with the tender document it wrote itself is universal. Only write things in your specifications that you are sure are necessary — and as a bidder, read every word of the technical requirements with the same care as in an open tender.
The lesson
If your offer has a performance parameter that depends on a mode (active vs. passive, normal vs. peak, dry vs. wet), check whether the specifications distinguish between modes. If not, your weakest value counts as your offer — not your best. Saying in court 'we meant...' does not work: the Council reads the document as written.
Ask yourself
For every 'minimum' requirement in the specifications: can our product meet it in all operating modes contemplated by the tender document? If not, do we explicitly say so or limit our offer to the mode in which we do comply?
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 →