A remark in your offer about delivery times or revisions doesn't automatically make it irregular — provided the specifications allow it and your opponent can't link it to the award criterion
Ghent University awarded the €8.5 million Capture new-build to Cordeel-Imtech despite two remarks in their offer (longer delivery times for reinforcement plans and €100/hour from the third revision of production drawings); the Council of State rejects Wyckaert/SPIE's challenge because the specifications do not exclude the remarks and the applicants cannot directly link the alleged competitive advantage to the sole award criterion — price.
What happened?
Ghent University, together with the IIC Ghent NV, ran a two-stage restricted procedure for a new research building 'Capture' at the campus E (Eilandje) in Zwijnaarde. Notice published on 16 February 2018 in the Belgian official journal and on 20 February in the OJEU. Five candidates were selected on 4 May 2018, including the temporary association Wyckaert/SPIE Belgium. They were invited to bid on 18 May 2018. Price was the only award criterion. The specifications required reinforcement plans for concrete to be delivered 'at least 3 calendar weeks before execution' by the structural engineer, with the possibility of mutual agreement on different terms; the spec was silent on steel construction plans. The contractor was not allowed to demand plans earlier unilaterally. Five offers came in, including the joint venture Cordeel-Imtech. In their offer, Cordeel-Imtech made two 'remarks': (1) reinforcement plans for in-situ concrete 6 work weeks before execution, for prefab 8 work weeks, for steel construction 10 work weeks; (2) maximum two revisions of production drawings for prefab concrete, metal and joinery — from the third revision €100/hour drafting fee. Ghent University classified these in its award report as non-substantial irregularities: they would not give Cordeel a discriminatory advantage, distort competition, prevent comparison or make the bid uncertain. On 11 September 2018 the contract was awarded to Cordeel-Imtech for €8,554,222.02 excl. VAT — as the lowest regular bidder. On 25-26 September 2018 Wyckaert/SPIE received the rejection letter; their offer was about €650,000 higher. On 9 October 2018 they filed an extreme-urgency action with the Council of State. Their single ground: article 76 §§1 and 3 of the 2017 Award Royal Decree — both remarks gave a discriminatory advantage, distorted competition, made offers incomparable and the commitment uncertain. They cited Council of State decision no. 221,290 of 8 November 2012. The XIIth Chamber (Johan Bovin, acting president) thoroughly rejects the ground. First remark (delivery times): the spec allows 'mutual agreement' on different terms for reinforcement plans and is silent on steel — so the remark is not made impossible by the spec. True, Cordeel creates advantages for itself with the remark (capacity, risk shift), but to qualify this as competition distortion there must be a link with the sole award criterion: price. The applicants don't make that link, and the price gap of about €650,000 makes it implausible that the alleged advantages would close that distance. Decision 221,290/2012 concerns a different situation. The 'work week' versus 'calendar week' difference is insufficiently developed. Disputes about later non-compliance with the times are an execution matter. Second remark (revisions): a 'reservation' presumes that the bidder attaches a condition without basis in the spec or regulations. Ghent's reading — that the spec implies one revision round in principle and at least does not impose unlimited revisions — is plausible. The applicants' premise — that Cordeel's own errors would lead to multiple revisions — assumes deliberate misconduct, unfounded. Moreover all bidders could have made the same conditional offer. No direct link to price. Conclusion: the single ground is not serious. The extreme-urgency action is rejected. The applicants are ordered to pay registry fee (€400, half each), contribution (€40, half each) and €700 procedural cost award. Total: €1,140 for the failed action.
Why does this matter?
Bidders regularly add 'remarks' to their offers: about delivery times, revisions, guarantees, payment terms or other execution arrangements. When such a remark is an inadmissible reservation that makes the offer substantially irregular (article 76 §1 of the 2017 Award Royal Decree) is a perennial grey area. This case sharpens the test in two ways. (1) A remark is not a reservation if it has support in the specifications — for example because the spec allows 'mutual agreement' on different terms, or because the spec is silent on a point and thus leaves room. Read your specifications before adding remarks or rejecting them. (2) The competition-distorting effect must be concretely linked by the applicants to the award criterion that is in play — with price as sole criterion, to a price impact. A vague 'capacity advantage' or 'risk shift' is not enough when the price gap between offers is substantial. For bid managers: remarks can be functional (making your execution safer), but formulate them so they stay within the spec's room and do not affect comparability. For contracting authorities: motivate in the award report precisely why a remark falls outside the definition of substantial irregularity — that motivation is your shield on appeal. For applicants in extreme-urgency actions: don't stop at general claims of 'discriminatory advantage'; explain why the remarks affect the award criterion, with figures and reasoning.
The lesson
A remark in an offer is not automatically a reservation, and a reservation is not automatically a substantial irregularity. The test is layered: (1) is the remark allowed by the specifications or not expressly excluded? (2) does it contain a real advantage affecting equality? (3) is that advantage directly linked to the award criterion at play — with price-only, to price? If any of these three is 'no', the offer falls outside article 76 §1 of the 2017 Award Royal Decree. For applicants: argue concretely and with figures; vague capacity or risk stories will fail against a price gap of several percent or more.
Ask yourself
You argue that a competitor's remark in their offer gave them a 'discriminatory advantage': (1) Do you show the remark conflicts with an explicit specification clause (not silence or a permitted exception)? (2) Do you link the advantage directly to the concrete award criterion in this contract — with price as sole criterion, to a quantifiable price impact? (3) Is your link substantial enough to explain the existing price gap between you and the winner? If any answer is no, your ground is at rejection risk.
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 →