If you ask one bidder to clarify an 'abnormal' offer, you must ask every bidder with the same ambiguity — selective questioning is unequal treatment
The Council of State suspends a Brussels Environment Institute award because only Oneliner was questioned about its 'abnormally high' translation volumes, while another selected bidder had explicitly not committed in its own offer either — selective questioning over an ambiguous tender clause is unequal treatment of bidders.
What happened?
In November 2016 the Brussels Environment Institute (BIM) launched an open call for tenders for translation services Dutch–French–English in three lots: 'Environment', 'Energy' and 'Legal'. One of the award criteria (20 points out of 100) was the execution time: bidders had to state 'the number of pages per day that can be translated by the translator the bidder commits to'. Alongside price (40) and quality (40). For lot 1 four bidders submitted (IGTV, Brussels Translation, Production, Oneliner), for lot 2 three (IGTV, Production, Oneliner), for lot 3 six. Oneliner stated 25, 24 and 23 pages per translator per day for the three lots. The other two selected bidders stated 8 and 10. On 6 April 2017 BIM asked Oneliner to justify its figures under article 96 §4 of the Royal Decree of 15 July 2011: 'Experience tells us it is utterly impossible for one translator to produce such a workload per day.' On 7 April 2017 Oneliner replied with a detailed technical justification (average 1,400 characters per page, translation memories, speech-to-text, experience with Brussels environmental matters since 2015) and closed with a fatal sentence: 'Furthermore the wording is literally "CAN be translated": which is not "must (always) be translated". This concerns a maximum performance.' On 17 May 2017 BIM made its decision. Lots 1 and 3 went to IGTV, lot 2 to Production. Oneliner's offer for lots 1 and 3 was declared substantially irregular: by relying on a 'maximum performance that need not always be reached', it had not committed itself, and without commitment offers could not be compared. For lot 2 Oneliner was not selected: of the two required references of at least €50,000/year in the energy field, BIM only acknowledged the Belgian Buildings Agency (€30,000 in 2015) and BIM itself (€15,295.25 in 2015). Oneliner filed an extreme-urgency application. Three grounds were upheld. Fourth + second branch of fifth ground — irregularity of lots 1 and 3. Reading the confidentially filed offers, the Council found something striking: another selected bidder had explicitly noted in its offer that the figure was merely 'an average number of pages per day, which can vary depending on the nature and difficulty of the texts' — the exact same caveat for which Oneliner was knocked out. A third selected bidder had, just like Oneliner in its initial offer, stated a number without any explanation. BIM had questioned only Oneliner. The Council: 'it does not appear that the request for further clarification of the offer was directed in a comparable manner to all bidders in the same situation'. And further: 'At the very least, if it considered that the applicant's offer should be declared irregular for lack of commitment, it should also have questioned the other bidders on the matter.' That breaches the equal-treatment principle and the duty to investigate the regularity of all offers carefully. Third ground — non-selection for lot 2. Oneliner's offer listed many references under section 14 'Relevant references', including a Beliris reference (good-execution certificate of 27 April 2015, period 2013-2015, annual amount €45,000) and a NIRAS reference (certificate of 26 April 2015, contract since 2008, annual amount €50,000). BIM did not count those, but its formal reasoning nowhere explained why they did not qualify as 'similar translations'. Only in its written observations to the Council did BIM try to substantiate this — an a posteriori reasoning no longer admissible. Formal duty to state reasons breached. The Council orders the suspension at extreme urgency of the entire award decision of 17 May 2017 — award to IGTV and Production, irregularity of Oneliner for lots 1 and 3, and non-selection for lot 2.
Why does this matter?
For contracting authorities this is a warning: article 96 §4 of the Royal Decree of 15 July 2011 (today article 35 of the Royal Decree of 18 April 2017 for classical sectors) is not an optional privilege where you choose whom to question. Once you use it, you must ask the same question of everyone in the same factual situation — otherwise your award loses its equal-treatment foundation. For bid managers this means an irregularity declaration based on 'lack of commitment' is contestable when you can show that (i) the tender clause admits multiple readings and (ii) other bidders also did not (or said the very same thing). Access to the other offers via Council of State proceedings is often the pivot. On non-selection based on references: state in your offer explicitly which references you invoke for which lot — but know also that the contracting authority must concretely state in its decision why specific references do NOT qualify as 'similar'.
The lesson
If you receive an irregularity declaration because you allegedly 'did not commit' to a feature of your offer, and the underlying tender clause is open to multiple readings, immediately request access to (relevant parts of) the other offers via the extreme-urgency procedure. Show that the authority questioned selectively or that other bidders with the same ambiguity were nonetheless selected. And on non-selection by reference review: read the reasoning closely — a contracting authority cannot hide behind 'we counted only two' without saying concretely why the other references on your list did not qualify.
Ask yourself
When your offer is declared irregular because you allegedly failed to 'commit' to a performance, while the tender clause uses words like 'can' or 'average' or 'approximately': have you checked whether the other bidders' offers contained an unconditional commitment? And if the authority requested clarification: did it ask all bidders in the same position, or only 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 →