Leaving an unsigned offer on e-procurement isn't a double submission — it's an abandoned half-finished project
Aswebo had uploaded documents to e-Tendering without ever signing the submission report, then joined THV Stadsbader-Aswebo for a 7-million-euro road works tender — Roads and Traffic excluded both offers as 'double bids', but the Council of State suspended that decision: art. 54 §2 requires a purpose-related test, not textual punishment.
What happened?
In 2016, the Roads and Traffic Agency of East Flanders launched an open tender for the structural maintenance of the N49/E34 motorway in Maldegem (specifications 1M3D8H/16/22). Award method: open adjudication, with mandatory electronic offer submission via e-Tendering. Four bidders filled their electronic vault: Aswebo (€7,877,534), THV Stadsbader-Aswebo (€8,379,951), TV Norré-Behaegel-RTS (€8,169,517) and Wegebo (€8,527,817). At the opening on 24 October 2016, there was a problem: Aswebo had uploaded 14 documents including the offer and bill of quantities, but 'no signed submission report was found'. The uploaded bill of quantities was an outdated version, predating a corrigendum. In a first award report (30 January 2017), Roads and Traffic excluded three bidders: TV Norré-Behaegel, Aswebo and THV Stadsbader-Aswebo, the last two for 'submitting a double offer' (art. 54 §2 RD Procurement). The contract went to Wegebo. Stadsbader-Aswebo took the case to the Council: judgment no. 238,128 of 9 May 2017 suspended that first award. On 29 May 2017, Roads and Traffic withdrew its decision. On 25 July 2017, Roads and Traffic produced a new award report. Both offers (Aswebo solo and the JV) were again excluded under art. 54 §2 — same reasoning as before, with as new argument that 'the Court of Cassation has rejected the doctrine of the non-existent legal act'. The contract again went to Wegebo for €7,047,783 excluding VAT. Stadsbader-Aswebo went back to the Council in extreme urgency. The XIIth chamber suspended again. The reasoning has two layers. First: can you treat documents uploaded to e-procurement without a signed submission report as 'an offer'? The petitioners said no — only with a signed submission report does the offer become finally 'submitted'. The Council did NOT follow that argument: files placed on the platform reach the contracting authority anyway. This is comparable to a paper offer with a missing signature: still an offer, just irregular, not non-existent. But then: can you use that embryo of an offer to trigger art. 54 §2 (prohibition on double bids)? Here Roads and Traffic failed. Art. 54 §2 serves the purpose of fair competition — preventing one bidder getting two chances. An unsigned offer is automatically substantively irregular under art. 51 §2 and 52 RD Procurement and must be excluded. It cannot therefore play any role in determining e.g. the lowest regular offer, and cannot create a 'double chance'. Aswebo did not have two chances — it had one half-finished attempt left lying around (an oversight), plus one real offer as part of the JV. The automatic, textual application of art. 54 §2 that Roads and Traffic carried out was disproportionate and missed the purpose of the rule. The Council suspended the award to Wegebo. The third sub-ground was no longer examined.
Why does this matter?
For procurement officers, this is the most important judgment in a long time on what constitutes 'an offer' in e-procurement. The error isn't in applying art. 54 §2 — that remains an important guarantee of fair competition — but in applying it automatically and textually. When you see two bundles under the same name, first check whether they BOTH represent genuine chances. For bidders and bid managers: clean up your e-procurement account before you submit. Leaving a half-finished project will not cost you THIS specific award — but with a less generous proportionality test it might.
The lesson
If as a contracting authority you discover a 'double submission' under the same bidder name (one solo, one in JV), don't apply art. 54 §2 automatically. First check whether both offers are regular. If one is clearly unfinished or formally defective (e.g. unsigned, wrong bill of quantities), exclude it for THAT reason first — then it doesn't create a 'double chance' and art. 54 §2 cannot be triggered against the second, regular offer.
Ask yourself
When facing two offers under the same bidder name, ask this three-step question. Is offer A regular (signed, correct bill of quantities, all documents)? Is offer B regular? Yes and yes? Then yes, art. 54 §2 triggers and BOTH must be excluded. No for one of them? Exclude that one first under art. 51 §2/52/95 §2, and treat the others as the only valid bids. A textual application without this test will go wrong.
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 →