If you only attack your own exclusion and leave the higher-ranked bidders alone, you have no interest left
The Council of State rejects Ethias's extreme-urgency application against its exclusion in a Federal Pension Service hospital-insurance tender without ruling on the merits — Ethias was not the lowest bidder for any lot and did not raise any ground against the regularity of the higher-ranked AXA and AG Insurance, so even a winning application could never have got it the contract.
What happened?
The Federal Pension Service (FPS) launched an open tender for hospital insurance for the staff, dependants and pensioners of three groups: the FPS itself (lot 1), local and provincial public services (lot 2), and the National Social Security Office (lot 3). Open tender, joint, specifications FBD/S300/2017/03. Five offers at the opening on 2 June 2017: AXA Belgium, AG Insurance, Belfius Insurance, DKV Belgium and Ethias. In its offer, Ethias attached a 'policy specimen' with its own general and special conditions, stating 'this insurance is governed by the following special and specific conditions and the attached general conditions'. But the specifications contained an explicit ban: 'replacing this special specifications (base policy) with a standard policy of the bidding company is not permitted'. On 26 June 2017 the FPS Management Committee declared Ethias's offer irregular and awarded lots 1 and 2 to AG Insurance, lot 3 conditionally to AXA. In a letter of 7 July 2017 — after Ethias asked for reconsideration — the FPS substantially refined its reasoning: not only had the ban on substituting the base policy been breached, but Ethias's general and special conditions deviated on essential points from the specifications. Tacit renewal contrary to article 37 §2 of the Public Procurement Act (maximum term), own limits on premium adjustments, and the absence of the specifications clause on continuity of pending files. The FPS attached a table in the same letter: Ethias's prices were third of four for lot 1, third of three for lot 2, second of four for lot 3 — never the lowest. Ethias filed in extreme urgency. One ground: the reasoning in the letter of 27 June was insufficient, as the real reasons only came in the letter of 7 July. AG Insurance intervened on the side of the FPS and, together with the FPS, raised an admissibility exception: even if Ethias prevailed on its exclusion, the contract would not come to it — there were cheaper bidders in each lot whose regularity Ethias had not attacked. The XIIth holiday chamber dealt with this head-on. The advantage Ethias sought was to obtain the contract. To do so, the judgment had to put it in a position to be ranked as 'lowest regular bidder'. But Ethias was fourth, third and second — never first. And in its application it only contested the regularity of its OWN offer: no ground against the assessment of the other offers, no ground arguing that the contract could not be awarded to anyone. To Ethias's argument that it had 'too little information' to question the other offers, the Council answered briefly: nothing in the administrative file suggested prima facie that the three (or two) higher-ranked offers were wrongly considered regular. Conclusion: even a total victory on Ethias's only ground could not lead to the award going to it. That removes its interest in extreme urgency. The application was dismissed without any substantive review of the reasoning or the alleged irregularity. Ethias paid €700 to the FPS and €150 each to the intervening insurers.
Why does this matter?
In an open procedure (lowest regular price wins) it is not enough to attack your own exclusion — you must also concretely show that the offers ranked above you were wrongly held regular. Failing that, you end up in a procedural dead end: even a winning application on your own irregularity leads nowhere. For insurers and other service providers wanting to add their own 'standard conditions' to an offer: don't. A policy specimen, a set of general conditions, a 'sample contract' — if it supplements or replaces essential specifications (think: tacit renewal, premium adjustments, duration), it is structurally treated as a substantive irregularity, because it undermines comparability. The duty to state reasons does not protect you if the Council first cuts off your interest.
The lesson
Before filing an extreme-urgency application against your exclusion, answer this: assuming your ground is 100% accepted, would you then be eligible for the award? In an open procedure (lowest regular price wins) the answer is NO if you are not the lowest and your application leaves the higher-ranked bidders alone. Add a second ground attacking the regularity of those higher-ranked offers — or request the administrative file before filing so you know whether such an attack is possible. An application that only defends your own offer slips past the reasoning gate but stumbles at the interest gate.
Ask yourself
When preparing an extreme-urgency application against an exclusion in an open procedure where you weren't the lowest priced: does your application contain a separate ground against the regularity of the higher-ranked offers? If not, your interest will trip up before the Council ever looks at the merits.
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 →