Admitted to negotiations ≠ your bid is compliant
The Council of State dismisses the suspension request of a vendor whose bid for a hospital laboratory information system was declared substantially irregular at the final stage — even though it had earlier been admitted to negotiations without objection.
What happened?
AZ Sint-Jan Brugge-Oostende launched a negotiated procedure for the supply, implementation and maintenance of a laboratory information system. CGM Lab Belgium submitted an initial bid, was admitted to the negotiations, gave a presentation and was invited to file a 'best and final offer' (BAFO) — throughout that process there was no question or remark concerning the regularity of its bid. A first award decision was suspended by the Council of State on 2 April 2019 (judgment 244.136); the hospital withdrew that decision on 17 April and re-examined all bids. In the new award report of 11 June 2019, the jury found that CGM's bid did not meet five minimum requirements of the specification and was therefore substantially irregular. On 12 June 2019 the bid was declared null and the contract awarded to MIPS. CGM lodged an extreme-urgency suspension request on 27 June 2019. Two pleas. First plea: (a) the minimum requirements were not stated in the contract notice and so could not ground irregularity; (b) by admitting CGM to the negotiations, the contracting authority had de facto recognised the bid as regular; (c) the authority should have allowed regularisation under article 76, §4 of the Royal Decree on Award. Second plea: the bid did meet all minimum requirements, and the authority should have asked clarifications on grounds of the duty of care and the right to be heard. The Council dismisses everything. (a) Article 38, §3 of the 2016 Procurement Act does not require all minimum requirements in the contract notice — only enough information 'to determine the nature and scope of the contract'; the specification suffices for the rest. (b) Admission to negotiations does not bar the contracting authority from finding, on examination of the final bids, a substantial irregularity that warrants nullification: article 76, §4 paragraph 1 of the Royal Decree expressly applies §3 to final bids — and §3 prescribes outright nullification. (c) Regularisation under §4 only applies to non-substantial irregularities. Five deviations from express minimum requirements are substantial — no regularisation possible. On the second plea the Council examines only the first of the five deviations — point III.4 'Use', item 9: 'possibility to enter results via pre-set standardised parameters'. CGM had not described that function anywhere in its bid; in its application it merely stated 'we comply with 60 of the 62 items of III.4' and 'the function is part of our system'. Insufficient: a bidder is expected to state all requested information explicitly in the bid itself, especially for minimum requirements. One confirmed substantial deviation is enough — the other four did not need examination. No right to be heard: rejecting a bid for substantial irregularity is not a sanction and does not withdraw a previously granted advantage. Action dismissed, CGM ordered to pay €920 in costs.
Why does this matter?
Many bid managers make a fundamental misjudgment: 'if I'm in the negotiations, my bid must be fine'. This judgment spells out the opposite: a contracting authority may identify substantial irregularities right up to the award decision — and is in fact obliged to reject a bid with substantial irregularities, regardless of how far the procedure has progressed. Equally dangerous is the assumption that a bid scoring 60/62 is 'compliant'. One unanswered minimum requirement is enough. For contracting authorities this judgment provides cover: even a procedurally advanced bidder can be excluded without a hearing and without regularisation, as long as the deviation from a true minimum requirement stands.
The lesson
Sweep your specification systematically for the word 'minimum requirement' (or equivalent) and ensure your bid addresses each item explicitly and verifiably. Not 'it's part of our system', but 'the function is performed via [X], as shown in [annex Y]'. Add a minimum-requirements mapping as an appendix. Never rely on having been admitted to negotiations or invited to a BAFO — that is no recognition of regularity.
Ask yourself
Build a table: minimum requirements on the left, page references in your bid on the right. One empty cell? You risk a substantial irregularity, regardless of how well you scored on every other point.
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 →