'Yes' on the bid form and 'no' on the ESPD: not a calculation error, but a ground for exclusion
Dockx Movers lost its extreme-urgency challenge against Artesis Plantijn Hogeschool because it ticked 'yes' to subcontracting on the bid form but twice answered 'no' in the attached ESPD — a contradiction the Council qualifies as a substantial irregularity that can no longer be cured under article 34 of the Royal Decree of 18 April 2017.
What happened?
Artesis Plantijn Hogeschool Antwerpen launched a four-year framework agreement in November 2018 for 'various logistical removal services' (specification AP/OP/2018-032), via an open procedure. The estimated value over four years was 330,000 EUR including VAT. The specification required explicitly and repeatedly — in section 2.5.4, in section 2.7 and even on the bid form itself — that bidders submit a fully and correctly completed ESPD with their offer, 'including for subcontractors and other entities on whose capacity the bidder relies'. Four bids were opened on 20 December 2018, including Dockx Movers'. On review the authority found an internal contradiction in Dockx's offer: on the bid form 'yes' was ticked next to subcontracting, with the note that 'Dockx Movers never subcontracts entire parts but occasionally uses extra movers under the supervision of a Dockx team leader', and listing Declic Movers as subcontractor. A signed 'commitment to make resources available' from Declic Movers was attached, with explicit joint liability under economic and financial selection criteria. The ESPD, in contrast, twice answered 'no': both on reliance on the capacity of other entities and on subcontracting. On 5 March 2019 the award report concluded that the Dockx offer was therefore substantially irregular under article 76 §1 fourth paragraph 2° of the Royal Decree of 18 April 2017, and consequently void under §3. The contract went to Transmoove (94.5/100), with Team Relocations second (84.5/100). Dockx filed for extreme-urgency suspension on two grounds. The first argued that the ESPD did meet the legal requirements and that the inconsistency claim was factually wrong. The Council brushes this aside: the ESPD should have stated that subcontractors and capacity of third parties were used, and a separate ESPD for Declic Movers should have been attached — neither was done. The second ground invoked article 34 §2 of the 2017 Royal Decree: the authority should have checked the 'real intent' through a global analysis or asked for clarification. That fails too: article 34 §2 covers only calculation errors and purely material errors — slips or mistakes when entering figures. Dockx had however explained at length in its application why the ESPD was deliberately filled in this way; no slip. Furthermore, an authority is not obliged to seek clarification in an open procedure, and any such inquiry may not regularise a substantially irregular offer. Suspension dismissed; Dockx pays 200 EUR roll fee, 20 EUR contribution and 700 EUR procedural indemnity.
Why does this matter?
The ESPD is not a stand-alone tickbox document — it is read together with the rest of your offer, and internal contradictions are a substantial irregularity that compels the authority to exclude you (no discretion under article 76 §3). Two compounding mistakes are lethal here: first, 'yes' on the bid form and 'no' on the ESPD cannot both be right; second, when you use a subcontractor or rely on a third party's capacity, you must attach a separate ESPD for that party — a duty the specification literally repeats three times. For those hoping for a 'reasonable interpretation' from the authority: forget it. The case law on article 34 (correction of errors) is strict: only slips and purely material mistakes count, never deliberate choices. And in an open procedure, an authority cannot even cure a substantial irregularity through clarification.
The lesson
If you use subcontractors or rely on third-party capacity, fill in those two ESPD questions ('reliance on capacity of other entities' and 'subcontracting') with 'yes' — and attach a second, fully completed ESPD for each subcontractor or supporting third party. Before submission, lay your bid form and ESPD side by side: if there is one 'yes' against one 'no' on the same topic, your offer is legally irregular and the authority has no choice. If you got it wrong, do not explain to yourself why 'it's still logical' — a deliberate choice does not fall under correction of calculation or material errors.
Ask yourself
Before I click 'submit': does my offer say 'yes' anywhere on subcontracting or capacity? If so, does the same 'yes' appear in my ESPD — and is there a second ESPD for that subcontractor or supporting third party? If I have to answer 'no' on any of those three questions, do I know that my offer is heading for automatic exclusion?
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 →