Crossed out the binding clause on the bid form? Then you submitted no bid, even if you signed everything else
The Council of State rejects Horeservi Catering's extreme-urgency action against the award of a four-year framework agreement for student catering to Prorest, because on the bid form the essential clause by which the bidder commits 'on its movable and immovable property' to performing the contract had been crossed out — no commitment, no bid, no interest.
What happened?
Artesis Plantijn University College Antwerp launches on 8 June 2016 a four-year framework agreement for the catering of its student restaurants, estimated at 'ca. €750,000 incl. VAT per year'. Open procedure, specifications AP/OO/2016-024. Article 1.5.15 of the specifications is clear: 'Bids in which the bid form and/or the completed information sheet is missing and/or not correctly and/or originally signed will be considered by the contracting authority as substantially irregular and consequently void.' Background: AP University College had on 11 June 2015 already awarded a similar framework agreement to NV Horeservi Catering — a contract that Horeservi itself terminated by registered letter of 30 May 2016, prompting this new procedure. At the opening session of 21 October 2016 two bids are opened. One in the name of Prorest Catering NV, and one — recorded in the minutes — in the name of 'Marleen Flemings' with home address in Hasselt (the personal home address of Marleen Flemings), while the registered office of Horeservi Catering NV is in Brussels. The minutes also refer to 'Horeservi Catering' as context. In the assessment report of 4 November 2016, the evaluation committee finds that 'the bid (bid form) was submitted in the name of Marleen Flemings, while all other documents were submitted for the company Horeservi Catering NV'. With reference to article 1.5.15 of the specifications, the bid is declared substantially irregular on formal grounds and rejected as void. For 'Marleen Flemings' the access right is not even examined further. Prorest scores 97.95/100 on the seven award criteria. On 16 November 2016 the contract is awarded to Prorest. Horeservi requests on 23 November 2016 the withdrawal of the award and files an extreme-urgency action on 1 December 2016. The single ground centres on the argument that it is indeed Horeservi NV that bid (Marleen Flemings signed as managing director), that the contracting authority knew Horeservi from the prior 2015 contract, and that the specifications do not expressly provide that a discrepancy between the name on the bid form and the other documents nullifies the bid — only a missing form or missing signature was sanctioned. The defending party counters with a two-stage rocket. First stage: the bid form is signed by Marleen Flemings personally, with no reference to a legal person, and the data required for bidding as a legal person (article 81, 1° Royal Decree on Award) are crossed out as 'not applicable'. Second stage — which the Council will seize on: the clause 'commits or commit on its or their movable and immovable property to the performance, in accordance with the provisions and conditions of the aforementioned specifications, of the contract described in this specifications' is also crossed out on the bid form. Counsellor of State Johan Bovin draws the conclusion. When signing, a bidder must unambiguously commit to performance. That essential commitment is prima facie entirely missing, because it was explicitly crossed out on the bid form and no such commitment can be inferred from any other document — which Horeservi itself does not even claim. Conclusion: substantial irregularity, regardless of whether it was Marleen Flemings personally or Horeservi NV that bid. Uncontested substantial irregularity, so the contracting authority may even raise this for the first time before the Council. No interest in the ground, objection upheld. Application rejected, Horeservi ordered to pay 200 euros docket fee and 700 euros procedural indemnity.
Why does this matter?
Standard bid forms in the annex to specifications often contain pre-filled standard texts of which parts seem 'not applicable' — data for natural persons vs. legal persons, currency, etc. Crossing out what does not fit can be a legitimate act. But the clause in which the bidder commits to performing the contract ('commits on its movable and immovable property...') is not a free choice: that is the bid itself. Anyone who strikes through that clause has effectively submitted no bid. The consequences are brutal: substantially irregular, void, no interest in challenging the award to the competitor. And even if the bid form is filled in by a natural person and other documents show who is 'really' meant, the absence of that commitment remains fatal. For catering, cleaning, security and all service framework agreements where the bid form is often filled in hastily by someone on the ground: this is a lost ratio — a five-minute check on the form could have saved the procedure.
The lesson
Before submission: place the signed bid form next to the blank version from the specifications and check sentence by sentence what is crossed out and why. Specifically the commitment clause ('commits on its/their movable and immovable property to the performance...') must NEVER be crossed out, not even if you 'find it superfluous' or 'don't think about it'. Also: the identity of the bidder must be consistent across the entire bid file — the same name on the bid form, the information sheet, the inventory, the annexes. Is a managing director acting for your company? Then she/he signs 'in the name of Company NV', not as a natural person at her/his private address. Is anyone on the ground in doubt? Call the university's secretariat or the procurement team before the opening session — asking a question costs nothing, a void bid costs the whole contract.
Ask yourself
Take the last bid you submitted and find the bid form. Read sentence by sentence what is signed and what is crossed out or struck through. Is the commitment clause (the sentence in which you declare you will perform the contract in accordance with the specifications) entirely present in the bid? Is the name on the form the same legal person as on all other documents? If not for either: there is a major risk that your bid will be rejected as substantially irregular — and no one will warn you.
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 →