The lowest bidder loses a €105,982 school renovation because seven mandatory documents were missing — and the specifications offered no second chance
The Council of State dismisses the suspension request against the award of the renovation of the KA Berchem classrooms to Creative Resin Solutions for €105,982.08: the fact that the contracting authority allowed the winner to add a missing reference list but not Verboven-Reynders does not breach the principle of equal treatment — a bidder who omitted seven mandatory selection documents is not in a 'comparable situation' to one who only missed a single formality.
What happened?
On 27 January 2016, Antwerp School Group 1 published an open tender in the Bulletin of Public Procurement Notices for the 'Renovation of Classrooms at KA Berchem Phase 1'. The specifications required an extensive set of documents in three blocks: access rights (contractor's accreditation, criminal record extract, non-bankruptcy certificate, social security certificate), economic and financial standing (bank declaration, tax certificate), and technical capability (a list of three completed building works in the past five years, three signed certificates of good performance, an occupational accident statistic, and proof of site visit). Four bids came in. Verboven-Reynders was the lowest at €105,964.83 incl. VAT. Creative Resin Solutions followed at €105,982.08 — a €17 difference. Levanto bid €111,978.54, Robaert Jan €142,485.55. On 15 February 2016 the review report was drawn up. On a 16-cell matrix per bidder, Creative Resin Solutions had everything 'OK' except a single 'NOK' for the separate reference list. Verboven-Reynders had seven 'NOK': criminal record, non-bankruptcy, tax certificate, bank declaration, three certificates of good performance, reference list, and accident statistic. Robaert Jan had eight 'NOK'. The authority then decided: it asked Creative Resin Solutions for the missing reference list 'to complete the file'; Verboven-Reynders and Robaert Jan were rejected without an opportunity to add anything, on the ground that 'a multitude of requested documents are missing, so no clear picture of the firm can be formed'. By letter of 17 February 2016, Verboven-Reynders was told its 'offer was not chosen', with the review report attached. On 2 March 2016 Verboven-Reynders went to the Council of State with three pleas. The first two argued breach of equal treatment: it had been denied the chance to top up its file while Creative Resin Solutions had been given that chance. The bidder also argued that the specifications announced the authority would itself fetch the non-bankruptcy certificate — which it didn't — and that in an open tender the implicit declaration of honour (article 61 § 4 of the Royal Decree on Award) automatically applies to exclusion grounds for which the authority has free electronic access. Chamber President Dierk Verbiest first split the documents into two categories: documents proving access rights (criminal record, non-bankruptcy, tax certificate), where the implicit declaration of honour does prima facie apply for the last two — the Council sided with the bidder here. And documents proving qualitative selection (bank declaration, three certificates of good performance, reference list, accident statistic). For the second category, the implicit declaration does not apply: the specifications never said these would be fetched electronically, and the Council sees no way the authority could have had free access to a bank declaration or an internal accident record. Then the hinge: article 59 § 1 of the Royal Decree gives the authority a possibility — not an obligation — to ask for additions or clarifications. 'The starting point is that every bid is assessed as submitted. It is first and foremost the bidder's task to draft its offer with due care.' If the authority does add, it must respect equal treatment — but only between bidders in a comparable situation. The Council then turned to the facts. Creative Resin Solutions had supplied all the documents except a separate reference list. But it had supplied three certificates of good performance for works comparable in nature and size to the present contract — exactly what the reference list was meant to evidence. The certificates therefore covered, in substance, the content of the missing reference list. The authority later explained that the list was no longer requested 'because it already had sufficient information through the three certificates of good performance'. In other words: there was no material selection risk. Verboven-Reynders, by contrast, was missing not just the separate reference list but also the three certificates of good performance, the bank declaration, and the accident statistic. It made no showing that it could supply them — and prima facie, a bank declaration cannot be added after bid opening without breaching equal treatment among bidders. Robaert Jan, in a substantially similar situation (eight missing documents), was likewise not invited to top up. Treatment between Verboven-Reynders and Robaert Jan was therefore identical; treatment between Verboven-Reynders and Creative Resin Solutions concerned different factual situations. The fact that the authority may have wrongly failed to apply the implicit declaration for two access-right documents did not change the conclusion: even excluding those, enough selection documents were still missing in Verboven-Reynders' file to support the rejection. The reasoning 'a multitude of requested documents are missing, so no clear picture of the firm can be formed' is, according to the Council, not an empty formula but adequate motivation, especially read together with the matrix listing missing documents. The third plea — that there was no formal award decision — was also rejected: the director signed a decision fully endorsing the review report, which was attached to the notification. The action was dismissed. Verboven-Reynders was ordered to pay €200 court fee plus €700 procedural indemnity to School Group 1 Antwerp; Creative Resin Solutions paid €150 court fee for its intervention.
Why does this matter?
For contractors and bid managers, this is a tough but useful judgment. The 'principle of equal treatment' is often raised to challenge lost tenders — but the argument fails the moment your situation provably differs from the winner's. One missing formality is not the same as a pile of missing substantive selection documents. The Council of State restates the old rule: the specifications are your instruction sheet, and it is first and foremost your responsibility to draft your offer with due care. Article 59 gives the authority a possibility to top up, not a duty. The judgment is also a clear guide on the implicit declaration of honour: it applies only to exclusion grounds for which the authority has free electronic access (typically social security, non-bankruptcy, tax certificate), not to selection documents like bank declaration, references or accident statistics.
The lesson
Before submitting a bid: literally walk through the matrix in the specifications and tick off each item, including subcomponents (bank declaration, three certificates of good performance, accident statistic). One missing item is enough to be rejected, and you have prima facie no right to a second chance. Arguing that a competitor was allowed to top up only works if that competitor was in a substantially similar situation — missing one formality is not the same as missing seven substantive documents. For contracting authorities: build a matrix in your review report, document why you let one bidder top up and not another, and keep the criteria objective — the Council looks closely at consistency between bidders.
Ask yourself
Open your most recent bid. Walk through every document requirement in the specifications, including subitems. What is missing? For each missing item, can you credibly argue that it was 'freely accessible electronically' to the authority? For selection documents (bank declaration, certificates of good performance, technical capability) the answer is almost always no. Submit them, or accept that a rejection will be lawful.
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 →