A ESPD with only the odd pages scanned: a scanning slip, not grounds for exclusion
The Council of State suspends the award to Roularta because the City of Antwerp excluded Roto Smeets' bid for an incomplete ESPD (only odd pages scanned), although the scanning error resembles 'an inadvertent slip' and the equality of bidders was not at stake.
What happened?
The City of Antwerp launched an open procedure for a framework agreement to print its city magazine, tender specification GAC/2017/4770. Award criteria: price, service, sustainability and CSR. On 23 January 2018, four printers submitted bids: Roularta Media Group, Roto Smeets Belgium, Drukkerij Moderna and Symeta. During the regularity check on 6 February 2018, the City excluded Roto Smeets at the 'formal review' stage. The reason: the mandatory ESPD form (European Single Procurement Document) had been 'submitted incomplete — only the odd pages were scanned'. According to the City this constituted a substantial irregularity under article 76, §1, third paragraph, 2° of the Royal Decree on Tendering of 18 April 2017 (read together with article 38). Exclusion, no substantive evaluation. During the substantive review, the bids of Drukkerij Moderna and Symeta also turned out to be irregular. Only Roularta remained. With the award decision of 2 March 2018, Roularta got the framework agreement — by default of competition. Roto Smeets received the award decision and the evaluation report on 5 March 2018 and brought extreme-urgency proceedings on 19 March 2018. Roto Smeets built its plea around the principle of proportionality as an application of reasonableness. The tender specification did not state that the ESPD had to be filed under penalty of nullity. The defect was a 'manifest material error' caused by scanning: a duplex-printed ESPD went into the scanner, which only picked up the odd pages. Allowing the even pages to be added would not affect the equality of bidders and would not let Roto Smeets 'modify the content of its bid'. The City defended itself strictly: article 38 of the Royal Decree mandates the ESPD; article 76, §1, fourth paragraph qualifies non-compliance as substantial. The contracting authority has no choice. The Council of State (chamber president Dierk Verbiest) — against the contrary advice of auditor Frederic Eggermont — sided with Roto Smeets. The reasoning: the rules on which the City relies seem to apply where the ESPD is ABSENT. Here the ESPD was present, just incomplete. A scanning error letting only odd pages through 'closely resembles an inadvertent slip in a text or in a figure'. A critical observation in the reasoning: the missing even pages did NOT prevent the selection of Roto Smeets. The ESPD mainly contains identification, exclusion grounds and selection criteria, and Roto Smeets was selected. Excluding that same bidder for that same ESPD shortcoming therefore looks like 'a contradiction in the contested decision'. The Council also points out that article 73 of the Act of 17 June 2016 itself states that the ESPD contains a formal declaration that the bidder will produce supporting documents 'on request' — a statutory hint not to handle ESPD shortcomings too rigidly. Conclusion: by applying the rules without further inquiry and not asking Roto Smeets to fix this surprising but understandable incompleteness, the City appears to have exceeded the limits of reasonableness. The plea is serious. Suspension of the award granted. The action against the implicit refusal to award to Roto Smeets is dismissed — curing an irregularity does not yet require the City to award the contract to Roto Smeets.
Why does this matter?
This judgment addresses a question every contracting authority struggles with: when is an ESPD defect substantial? The text of the law suggests a hard answer — non-compliance = substantial — but the Council nuances that significantly. There is a key difference between an ESPD that is ABSENT (which the legal rule covers) and an ESPD that is present but incomplete due to a recognisable material slip. In the latter case, a contracting authority must specifically justify why it is not allowing rectification — particularly when the missing information was not actually decisive for selection. For bidders this is ammunition. If a contracting authority excludes you for a 'substantial irregularity' that is in reality a scanning error, page slip or other material slip — especially when you were nonetheless selected on the basis of what was filed — you can argue the authority went beyond the bounds of reasonableness by not allowing rectification. For contracting authorities this is a warning not to automatically apply the heaviest label. Ask yourself, with each exclusion for a formal defect: (1) is the document really absent, or just incomplete? (2) did the missing piece actually prevent assessment, or was the bidder selected anyway? (3) would adding the missing piece harm the equality of bidders? If you cannot expressly address those three questions in your evaluation report, you risk a suspension.
The lesson
If as a contracting authority you want to exclude a bid for an incomplete ESPD, you must show two things: (1) that it really is an absence, not a recognisable material error like a scanning slip, and (2) that the missing information was actually capable of preventing selection. Did you select the bidder on the basis of what was filed? Then you face a contradiction that may render your decision unlawful. Ask for rectification in that case — it is not a favour, it may be an obligation under the principle of reasonableness.
Ask yourself
You are excluding a bid for an incomplete ESPD. Ask yourself three questions before you confirm: (1) is the document absent, or just incomplete due to a recognisable scanning or paging error? (2) did the bidder pass the selection on the basis of what was filed? If yes, how can the same document then exclude them? (3) would rectification harm the equality of bidders — and if so, on what concrete point? If on (1) you say 'incomplete' and on (2) 'selected', and on (3) you cannot point to a concrete advantage: ask for rectification.
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 →