Opening half an hour too early costs FILBOIS eight lots — 'we always did it that way' is no longer a defence under the new Royal Decree
INTRADEL excludes long-time partner FILBOIS from all 8 lots for wood-waste processing because its facility opens and closes half an hour outside the specifications — the Council of State confirms: when the tender documents say 'essential', they mean essential, even if the same hours were accepted in previous years.
What happened?
INTRADEL, the intercommunal entity in charge of waste processing in the Liège region, launches an open procedure in late 2018 for the processing of wood waste collected at its recycling parks — CSCh no. 18/51/INT, 8 lots of 3,125 tonnes per year, total 25,000 tonnes, one-year contract. The award criteria are cost (80 points) and number of available drop-off sites (20 points). Under heading IV of the special specifications: 'The proposed transfer stations and drop-off centres must be accessible every working day of the year, at least during the following opening hours: Monday to Friday from 8 a.m. to 5 p.m.; Saturday from 8 a.m. to 1 p.m. December–February, from 8 a.m. to 5 p.m. the rest of the year.' And in a closing sentence in bold: 'This accessibility is an essential element of the contract, special penalties have therefore been laid down for non-compliance with these principles.' FILBOIS, a regular INTRADEL partner that had won several lots under the 2017 contract, submits a bid with opening hours of 7:30 a.m. to 12 p.m. and 12:30 p.m. to 4:30 p.m. (last weighing at 4:15 p.m.) on weekdays, and 8 a.m. to 12 p.m. and 12:30 p.m. to 3 p.m. on Saturdays. For the first 5 lots FILBOIS asks 56 euros per tonne, for the last 3 lots 60 euros per tonne — all from a single drop-off site. On 24 January 2019, INTRADEL excludes FILBOIS as substantially irregular on two grounds: (1) the opening hours deviate from the minimum hours in the specifications, giving a 'discriminatory advantage' and making performance uncertain, and (2) FILBOIS filled in the bid form twice with different prices for a single drop-off site, while the form may only be filled in multiple times 'if the drop-off site differs depending on the proposed location'. FILBOIS files an extreme-urgency application and builds an elaborate defence: 'this accessibility' in paragraph 3 should refer only to the adapted hours in paragraph 2 (which are in bold), not to the base hours in paragraph 1; FILBOIS has used the same hours for years and always won lots; competitor DEBOICO also has deviating hours and did get lots; the deviations are minor (half an hour morning and evening); and in case of doubt the specifications should be interpreted 'contra proferentem' against INTRADEL as drafter. The Council of State (President Imre Kovalovszky) does not follow FILBOIS. 'This accessibility' in paragraph 3 unambiguously refers both to the base hours in paragraph 1 and to the adaptation duty in paragraph 2 — the fact that only paragraph 2 is in bold is irrelevant. The specifications qualify the requirement as essential, so INTRADEL was right to treat the deviation as substantial irregularity. Decisive is what is in the administrative file: e-mails of 25 February and 2 March 2018 show that INTRADEL had already been alerted, during performance of the 2017 contract, that several awardees including FILBOIS were not respecting the specifications, and that 'discussions were ongoing with FILBOIS to adapt the hours as foreseen in the specifications'. FILBOIS therefore had to be aware that strict compliance would weigh more heavily in a new procedure. There is no 'change of attitude' requiring special motivation, as the rules on substantial irregularity were precisely clarified in the 2017 version. As for DEBOICO: discussions were also under way in 2018 to broaden its hours; for the new 2019 specifications DEBOICO does meet the minimum hours. The application is dismissed. The second plea (on the per-lot prices) is not examined: the first ground suffices to support the exclusion. FILBOIS pays 200 euros roll fee, 20 euros contribution and 700 euros procedural indemnity to INTRADEL.
Why does this matter?
Many bidders in stable supplier relationships build up implicit expectations: 'we have done it like this for years, it will be fine again.' That is dangerous from the moment the specifications expressly qualify a requirement as 'essential' — and certainly under the Royal Decree of 18 April 2017, which spells out the cases of substantial irregularity. There is also a less well-known mechanism at play: if the contracting authority has signalled to you, in a previous contract via e-mail or a meeting, that some aspect is non-compliant, you can no longer fall back on your 'usual practice' in the next procedure. That paper trail from an earlier contract binds you — it sits in the administrative file and the Council will take it into account.
The lesson
Whenever a word like 'essential', 'essential element', or 'mandatory on pain of exclusion' appears in the specifications, treat every detail of the requirement (hours, percentages, certificates, formats) as zero tolerance — even if you got away with a broader reading in past tenders. And check beforehand in your e-mail traffic whether the contracting authority has flagged something about your performance in a current or recent contract: that changes the baseline for your next bid.
Ask yourself
Go through your most recent bid to a regular client: do you actually tick off every 'essential', 'on pain of exclusion' or 'mandatory' wording in the specifications, or do you lean on 'we did it the same way last time'? And has the contracting authority sent you any e-mail in the last 12 months in which your operating practice was noted or criticised?
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 →