Three documents may be requested after opening — provided they add nothing to what the bid already substantively committed to
The Council rejects the extreme-urgency appeal of THV IJzerpoort against the award of the Nieuwpoort storm-surge barrier (€50,108,070.70 incl. VAT, awarded to Herbosch-Kiere – Jan De Nul) over the post-opening request to other bidders for three documents (10-year LED-module warranty certificate, lift maintenance contract proposals, fire-detection certification): article 96, § 4 of the 2011 Award Royal Decree allows this where the documents bring no change to the bid or merely provide 'additional assurance' for commitments the bidder had already entered into by signing.
What happened?
The Flemish Region, through the Maritime Services and Coast Agency (Coast division), launches a restricted tender for a movable storm-surge barrier on the IJzer with a 38-metre passage width and unrestricted passage height, with control building, roads and landscaping (specifications 16EH/15/17, file 215.080). Five candidates are selected; four submit bids: THV Portalo, THV IJzerpoort (Franki Construct + Hye + Hollandia Infra), THV Herbosch-Kiere – Jan De Nul, and THV De Nieuwe Poort. Opening 27 September 2016. Specifications article 81 'Bid contents' lists documents that are 'essential for assessment': bill of quantities, evidence of representation power, and the document plus separate price calculation for the safety and health plan. On 19 October 2016 the authority asks THV De Nieuwe Poort and THV Portalo for three additional documents (article 96, § 4 of the Award Royal Decree): (1) a signed declaration/warranty certificate for the 10-year guarantee and replacement of LED modules (required by specifications p. 327 on warning signs), (2) maintenance contract proposals for the lifts in the control building, with prices for maintenance during the warranty period, omnium 5 years and omnium 10 years (specifications p. 730), (3) certification attestation and description of the installation/documentation for fire detection (specifications p. 732). From THV Herbosch-Kiere – Jan De Nul only the warranty certificate and the maintenance contracts are requested (the fire attestation it had already submitted). THV IJzerpoort had submitted all three documents directly with its bid. The award report is drawn up on 31 January 2017. The authority's reasoning for the requests: these documents 'were not required on pain of inadmissibility, nullity or irregularity'; they are 'merely additional assurance for what the bidder had already committed to by signing the bid form'. For maintenance contracts: 'requesting them changes nothing in the bid pricing' — they are 'a form of non-binding market exploration' to gauge possible costs 'after performance'. For the fire certification: 'the certification attestation is an unchanging fact. A company holding such certification has it both before and after submitting the bid'. The contract is awarded on 15 September 2017 to THV Herbosch-Kiere – Jan De Nul for €50,108,070.70 incl. VAT. THV IJzerpoort files an extreme-urgency appeal on 3 October 2017. One ground with four parts: (1) these requests were a prohibited material modification of the bids under article 96, § 4; (2) maintenance contracts were a 'mandatory option' that should have been in the bid price and could not be added later; (3) LED-module warranty certificates were essential; (4) the fire attestation was essential. The Council deals with parts 2 and 3 first. Part 2 (maintenance contracts as mandatory option): article 10, § 1 of the Award Royal Decree requires a mandatory option to be designated as such in the contract documents, with object, nature and scope. Nowhere in the specifications does the word 'option' or 'mandatory option' appear; the bill of quantities has no separate item; the General Technical Support service made no comment about missing prices. Moreover, the other three bidders did not understand the requested proposals as a mandatory option either. THV IJzerpoort also fails to show how those amounts would influence bid prices and their comparison. Part 2 rejected. Part 3 (LED warranty): specifications point 4.5 'Warning sign' itself imposes the warranty obligation on the bidder (10-year retention of photometric characteristics, replacements at supplier's expense). 'By submitting a bid, a bidder commits to perform the contract in accordance with the specifications'. The warranty certificate is therefore 'merely additional assurance for what the bidder had already committed to by signing the bid form'. Not essential. Part 3 rejected. Part 1 (prohibited modification): with the essential nature of the three documents not established, the question is whether their later submission constitutes 'a modification such that it is in fact a new bid'. For LED warranty and maintenance contracts: bidders were already bound by their signature, so no modification. For the fire certification: 'an unchanging fact for a company that holds the relevant certification both before and after the bid' — so no material modification. Part 1 rejected. Part 4 (criticism of only the second- and fourth-ranked, not the winner): with the other parts rejected, THV IJzerpoort no longer has standing — even a serious flaw in the second-ranked changes nothing about the legality of the award to the winner. The second ground (about maintenance contracts as a mandatory option and the related reasoning) builds on the rejected premise and falls away. Application rejected. THV IJzerpoort pays €600 court fee (€200 per applicant, three applicants) and €700 procedural indemnity to the Flemish Region; the intervening parties together €300 court fee.
Why does this matter?
For bidders this contains an important technical lesson: article 96, § 4 of the 2011 Award Royal Decree (and its successor in the 2017 Award Royal Decree) allows the contracting authority to ask for 'clarification or addition' of a bid after opening — but only if this involves no material modification. When is a document not a material modification? The Council gives three tests, each based on a different legal idea: (1) Is the document 'additional assurance' of a commitment the bidder already made by signing the bid form? Then it is superfluous — the commitment exists already and the document changes nothing. (2) Is the content an 'unchanging fact' (such as a certificate the company already holds or does not hold, regardless of the bid)? Then later submission adds nothing to reality. (3) Does the content not affect pricing (e.g. proposals for optional maintenance contracts whose price is not part of the compared bid price)? Then requesting it can cause no distortion. Fail any of these tests — and the request is prohibited regularisation. For the 'good student' who handed in all required documents straight away, this is an unpleasant ruling: the authority may give other bidders more leeway than the literal text of the specifications suggests. A second lesson: anyone calling a document a 'mandatory option' to enforce strict submission rules must point to (a) explicit specifications language using the word 'option', (b) a separate item in the bill of quantities, (c) pricing that influences bid comparison, and (d) common understanding among other bidders. Four ticks — or the Council rejects.
The lesson
Want to challenge an award because the authority allegedly asked for prohibited documents after opening? First apply the Council's three tests: (1) is the document 'additional assurance' of something the bidder was already bound to by signing? (2) is the content an 'unchanging fact' (a certificate the company already holds or not)? (3) does the request leave the bid pricing unchanged? Three yeses — no prohibited modification, your ground will fail. Want also to qualify a document as a 'mandatory option'? Four ticks needed: specifications uses the word, separate item in the bill of quantities, influence on bid comparison, and other bidders understood it the same way. Otherwise your ground is built on weak foundations.
Ask yourself
Am I challenging that the authority requested a document after opening as a prohibited modification? Three checks: (1) was the bidder already bound by signing the bid form to what the document confirms (such as a warranty undertaking)? (2) is the content a fact existing independently of the bid (such as a certification the company already holds)? (3) does the bid pricing remain unchanged? Three yeses — the request is lawful under article 96, § 4 and your ground will fail.
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 →