Two bidders, both lacking the required certificates — yet the rejected bidder still has standing to seek suspension
The Council suspends the award to AGS Coussaert of lot 6 (packaging of diplomatic cargo) of the Federal Public Service Foreign Affairs: both the absence of an explicitly required bank statement and of two explicitly required certificates (ISPM15 and SEI/HPE) in the winning bid were left unmotivated in the award decision — and the contracting authority cannot hide behind the fact that BKSI's own bid was also incomplete, because with two bidders BKSI gets a new award opportunity if both are rejected.
What happened?
In April 2017 the Federal Public Service Foreign Affairs launches a five-year framework agreement for the transport and packaging of diplomatic shipments, divided into six lots. Lot 6 covers 'receiving, checking, packaging and holding ready Belgian diplomatic Cargo shipments destined for a Belgian diplomatic and/or consular representation abroad'. Specifications BZAE/P&O5/2017001 contain three specific document requirements for lot 6: an ISPM15 certificate (for wooden packaging in international transport), an SEI or HPE certificate (industrial packaging quality standards) and proof of insurance damage cover for at least €2,500,000.00. In addition — for all lots — a bank statement supporting financial capacity must be enclosed, set out in underlined text on page 19 with a prescribed template. Two bidders for lot 6: BKSI Packing (the applicant) and AGS Coussaert Belgium. On 1 September 2017 the FPS awards to AGS Coussaert. The award decision itself notes at the selection stage: 'the bank statement is missing' (for AGS) — but draws no consequence. On 29 September 2017 the FPS signs the contract with AGS. On 5 October 2017 BKSI files an extreme-urgency appeal seeking suspension plus interim measures (prohibition on signing — too late — prohibition on placing orders, and an order to award to BKSI). The FPS raises two preliminary objections: (1) BKSI no longer has standing because the contract is signed and only an ordinary court can suspend a signed contract, (2) BKSI has no substantive interest because its own bid also lacks an insurance certificate or ISPM15. On the first, the Council holds that in public procurement the applicant has a 'qualified moral interest' on annulment of an award decision 'despite the conclusion and even the performance of the subsequent contract', anchored in the broad definition of interest in article 14 of the 17 June 2013 Remedies Act. Article 30, § 2 of that Act (no suspension of a signed contract) covers only the contract itself, not the severable award decision. Objection rejected. On the merits the Council reaches BKSI's three grounds: (1) Bank statement: the specifications require it expressly and in underlined text with a specific template — once the authority has decided a candidate must produce a bank statement, it must produce one for selection purposes. AGS produced none. The FPS notes the absence in the award decision but does not motivate why the requirement may be passed over. The defence that 'financial capacity is not an essential specifications provision' is rejected — if you put it in underlined text yourself, you cannot later dismiss it as non-essential. Ground serious. (2) ISPM15 and SEI/HPE certificates: page 14 of the specifications expressly requires these for lot 6 bidders. Both are missing from AGS' bid. The award decision does not motivate why the bid is nonetheless regular. The defence that BKSI itself lacks an insurance certificate or ISPM15 is rejected: with only two bidders, 'if the contracting authority were to find that both bids must be set aside on those grounds, the applicant gets a new chance at award'. Ground serious. (The missing insurance certificate ground lacks factual basis — that one is in AGS' bid.) (3) Contradictory reasoning: the award decision states in one place that AGS' bid 'does not meet the formal and substantive regularity requirements' and elsewhere that it does. The defence that the first finding only concerned lots 1-5 is rejected — the decision itself does not limit the finding, and the word 'moreover' introducing lots 1-5 suggests it also covers lot 6. Ground serious. The Council orders suspension of the award decision but rejects suspension of the implicit rejection of BKSI: BKSI's own bid also lacks documents, so it cannot claim direct award. The three interim measures are all rejected: contract already signed (first prohibition too late), no jurisdiction over contract performance (second prohibition), BKSI's own bid incomplete (third measure). Costs reserved.
Why does this matter?
For unsuccessful bidders the core lesson is twofold. First: with two bidders you have standing to attack the winner's bid, even if your own bid has flaws — because if both are rejected you get a fresh round. The standard defence 'you also failed, so no interest' does not work in a two-party tender. Second: the objection 'the contract is signed, no more suspension possible' is a common misconception at federal services and intermunicipals. Article 30, § 2 of the Remedies Act only prevents suspension of the contract itself — not of the severable award decision. For contracting authorities this is a case full of pitfalls to learn from. Three rules: (1) if you require a document in your own specifications 'in underlined text' or with a 'prescribed template', you cannot later argue it was 'non-essential' — you elevated it to essential by formulating it that way. (2) If you note the absence of a required document in your award report ('the bank statement is missing'), you cannot proceed with award without any motivation. You must expressly explain why you find the absence acceptable — otherwise the motivation is defective. (3) If you make contradictory factual findings in the same award decision ('does not meet' in one place, 'does meet' elsewhere), you cannot patch this up afterwards by claiming the first finding only concerned the other lots. The text is what it is. And finally a procedural lesson: rapidly signing the contract after standstill to discourage appeal does not help — the severable award decision can still be suspended, leaving the contracting authority with shaky performance.
The lesson
If as a bidder you want to challenge an award and your own bid also has flaws: first count the bidders. With two bidders you still have standing — because if both are rejected, you get another chance. With three or more it becomes harder. Request the reasoned award decision (article 8 Remedies Act), read it with your lawyer against the specifications, and focus on four points: (1) is a document missing that the specifications expressly required, especially in underlined text or via prescribed template; (2) does the authority itself note the absence without further motivation; (3) does the reasoning contain contradictory factual findings; (4) has the authority already signed the contract, because that does not prevent suspension of the award decision. Three or four yeses — the appeal has high prospects.
Ask yourself
Did I get an award decision in which the authority notes a missing specifications document at the winner without explaining why it is acceptable, or in which the regularity of the winning bid is contradictorily assessed in different places? Two tests: (1) was the missing document expressly required in the specifications (bonus: in underlined text or via prescribed template)? (2) are there fewer than four bidders? Both yes — serious basis for an extreme-urgency suspension appeal, even if your own bid was not perfect either.
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 →