Once you require a bank declaration in the tender, you must enforce it — otherwise your award decision is empty motivation
The Council of State annuls the award to AGS Coussaert of lot 6 (diplomatic packing) of a five-year framework agreement of the Belgian Foreign Ministry: the award decision contained no motivation for accepting an offer without the bank declaration and without the ISPM15 and SEI/HPE certificates expressly required by the specifications, while the report simultaneously denied and confirmed that offer's regularity.
What happened?
The Federal Foreign Affairs ministry launched an open call for tenders for the transport and packing of diplomatic shipments — a five-year framework in six lots. Lot 6 covered receiving, checking and cargo-packing shipments to Belgian embassies and consulates: vacuum packing in standard 4C, ISPM15-compliant wood, cross-strapping, crates up to 1,000 kg, etc. For lot 6 the only award criterion was price per m² (100%). The specifications (page 14) expressly required three documents with the bid: an ISPM15 certificate, an SEI or HPE certificate, and proof of insurance coverage for at least 2.5 million euros. Separately the specifications (page 19, in underlined text, with a specific template) required a bank declaration evidencing financial standing. Two bidders submitted for lot 6: BKSI Packing (€ 35.34/m²) and AGS Coussaert (€ 9.70/m² — almost one quarter of BKSI's price). The award report noted that AGS Coussaert had not attached a bank declaration, and at one point concluded that 'the offer' of AGS Coussaert did not meet the formal and material regularity requirements — 'in addition' a substantial material irregularity was found for lots 1-5. Yet at another point the same report stated that the lot 6 offer was 'indeed formally and materially regular'. On 1 September 2017 the ministry awarded lot 6 to AGS Coussaert. BKSI Packing filed an extreme-urgency action; on 31 October 2017 (judgment 239,752) the Council of State already ordered suspension. On the merits the ministry argued the Council had erred: a bank declaration concerns financial standing and is allegedly not an 'essential clause' (only prices, deadlines and technical specifications would be — art. 95 § 3 read with art. 82 § 1 of the 2011 Placement Royal Decree), so its absence did not need motivating. As to the certificates 'implicit motivation' would suffice: the very fact that the authority concluded the offer was regular means it satisfied the requirements. The Council swept this aside. Once the authority itself decides in the specifications that a bidder must submit a bank declaration — underlined, with a specific template — that document must be submitted for selection. 'Financial standing is not essential' fails: the authority imposed it on itself. Same for the missing ISPM15 and SEI/HPE certificates: the specifications expressly required them, they were missing, and nothing in the award decision explains why the offer is nonetheless regular. The internal contradiction — first irregular, then regular for lot 6 — could not be cured by 'the word in addition only refers to lots 1-5'. The second plea is well-founded. Award decision annulled. The ministry pays € 400 court fee and € 1,400 procedural indemnity. BKSI's request for an enhanced indemnity (€ 2,800) was refused — that indemnity has no penal character, and the wealth of the losing party may only reduce, not increase, it.
Why does this matter?
Authorities often reason 'this document is not an essential clause, so I have flexibility'. This judgment is a hard correction. As soon as you require a document in the specifications — especially when underlined, with a specific template, in a separate rubric — you must enforce it. It is not enough to note in the report 'document missing' and proceed silently with the regularity check. You must motivate why the absence has no consequence, or qualify the absence as an irregularity. The 'implicit motivation' argument (the authority says 'regular', so it is regular) also fails when expressly required documents are demonstrably missing. For losing bidders: this case shows how high the motivation bar is. A self-contradictory award decision, or one that fails to address missing documents, is annulment-worthy — even if your own offer is not flawless. The Council expressly recalls that a bidder with defects in its own bid still has standing to seek annulment when the award went to a bid suffering the same defects.
The lesson
As a contracting authority: treat your tender specifications as a self-imposed law (patere legem). What you require — bank declarations, certificates, attestations — must be in the bid, or you must expressly motivate why you accept its absence. 'Not essential' is not an escape if you yourself underlined the requirement. If your award report contains 'irregular' and 'regular' about the same offer in the same paragraphs, the motivation is internally inconsistent and the decision is annullable. As a losing bidder: when comparing offers, look for the documents the specifications expressly required — if they are missing in the winner and there is no motivation for accepting the absence, that is a first-rate plea. Don't worry about your own bid being perfect: you keep standing if both bids suffer the same defect.
Ask yourself
Read the specifications and the award report side by side for every expressly required attachment (bank declaration, certificates, attestations): is the document in the winning offer, or does the report contain a motivated explanation for its acceptance? If both are missing — annulment plea. As an authority: do paragraphs in your award report contain both 'does not meet' and 'meets' about the same offer? Split clearly per lot or rewrite the report.
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 →