Including a formal requirement in the specifications is not the same as making it essential
The fact that a contracting authority explicitly includes a formal requirement (Excel file, file naming convention) in its specifications does not automatically make a deviation a substantial irregularity — the authority retains discretion and may judge that comparability is not affected.
What happened?
The Airport Development Company Oostende-Brugge launched an open tender for infrastructure works on Apron 3 at Oostende airport. Estimate: €3,152,230.18 excl. VAT. The specifications contained two strict formal requirements: article 80 required bidders to fill in the summary measurement statement in an Excel file provided by the contracting authority, and to upload both the Excel and PDF versions via e-tendering. Article 90, § 1 prescribed a precise file naming convention (01_OF-[bidder].[ext], 02_SO-[bidder].[ext], etc.). Ten companies tendered. In the award report of 16 October 2015 the contracting authority noted that three bidders (Verhelst, De Witte, RTS Infra) had not submitted an Excel version and three others (Verhelst, Aswebo, Heijmans) had not respected the file naming convention. The contracting authority considered both deviations 'non-substantial since the comparability of the offers is not affected'. NV Aannemingen Verhelst — lowest bidder at €3,105,039.71 — was admitted and won. BV Van Boekel Zeeland, ranked 5th at €3,351,700.05, went to the Council of State in extreme urgency with as core reasoning: by explicitly including these formal requirements in the specifications under articles 80 and 91 §1 of the Royal Decree on Tendering, the contracting authority 'implicitly but certainly' indicated that they were essential. The Council of State does not follow that reasoning. Article 95, § 2 of the Royal Decree on Tendering — as amended by the Royal Decree of 7 February 2014 — explicitly provides that a deviation from the formal requirements of articles 80, 81, 82, 90 and 91 is only substantial 'to the extent that the formal requirements are essential'. That qualification belongs to the discretion of the contracting authority. Mere inclusion in the specifications does not automatically make a requirement essential. Application dismissed.
Why does this matter?
Many bidders, especially foreign ones like Van Boekel, trust that strictly worded specification requirements will also be strictly applied. This judgment confirms the opposite: the contracting authority may judge a formal deviation as non-substantial, even when the requirement is explicitly in the specifications. For competitors hoping that lower-ranked rivals will be excluded for formal defects: that only works if you can show that the comparability of the offers was really affected — for example because the measurement statements could no longer be compared against each other.
The lesson
If you challenge an award because the winning offer did not respect a formal requirement from the specifications, do not write in your plea 'the specifications expressly required it, so it is essential'. Instead, develop why the deviation affected the actual comparability — for example that not all bidders could be compared against the same conditions, that the calculation template was missing and no automatic check was possible, or that the file naming convention was needed for anonymous evaluation.
Ask yourself
Before challenging an award on a formal defect: can you in two sentences concretely point to which substantive disadvantage the contracting authority suffered or which comparison step could no longer be carried out because of that formal defect? If not, it is probably a non-substantial irregularity.
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 →