Forgot the ESPD? There's no way back — even if the tender documents stay silent on the sanction
The Council of State confirms that omitting a European Single Procurement Document (ESPD/UEA) from a bid automatically renders the bid substantially irregular — even when neither the tender documents nor the information session mention that consequence.
What happened?
In February 2019, the Flemish Disaster Fund (Department Chancellery and Administration) launched an open European tender for the appointment of experts to assess damage after general disasters — specification 2019/VRF/01, divided into four lots. The notice was published on 12 February in the Belgian Bulletin of Procurement and on 14 February in the EU Official Journal. On 4 March, the contracting authority held an information session and afterwards published an erratum with an amended specification, the presentation and the meeting minutes. On 20 March a summary of submitted questions was added. Henk De Four, an individual bidder, submitted a bid for lot 3. The bids were opened on 2 April. In its award report of 8 July 2019, the jury found that De Four (and one other bidder) had failed to attach a European Single Procurement Document (ESPD/UEA) to his bid. The jury declared the bid substantially irregular under article 38 of the Royal Decree on Award juncto article 76 of the same Decree. On 6 August 2019, De Four lodged a request for suspension under extreme urgency before the Council of State. He raised four pleas: (1) he was nowhere warned that the absence of the ESPD would lead to irregularity — not in the specification, not in the information session, not in the minutes or the erratum; (2) the notification of 24 July 2019 did not refer to articles 23 and 24 of the Legal Protection Act, as article 9/1 requires; (3) the motivation was neither legally nor factually adequate; (4) he was given no chance to regularise or to be heard. The Council dismissed every plea. On plea 1: the obligation to submit an ESPD at the moment of bid submission flows directly from article 73 of the 2016 Procurement Act and article 38 of the Royal Decree; article 76 sanctions that non-compliance explicitly as 'substantial irregularity', and where there is substantial irregularity the contracting authority has no discretion — the bid must be declared null. The fact that neither the specification nor the information session spelled out the sanction is irrelevant: the rule is in the Royal Decree itself. Plea 2 was dismissed because a defect in the notification may affect the limitation period for appeal but does not affect the lawfulness of the award decision itself. Plea 3 failed on admissibility: De Four merely stated that the motives were 'neither legally nor factually adequate', without specifying where they fell short — that is insufficient as a plea. Plea 4 was dismissed for lack of legal interest: a substantial irregularity by definition admits of no regularisation. The Council rejected the action in full.
Why does this matter?
The ESPD is administrative, not substantive — it is a self-declaration that the bidder satisfies the exclusion and selection criteria. That makes it tempting to view as 'an attachment we can fix later'. This judgment confirms the opposite: the absence of the ESPD at submission is a substantial irregularity, with no leeway. No 'we forgot', no 'the specification was unclear', no 'can we still send it?'. For bid managers this means the ESPD deserves the same attention as the price and the technical bid. For contracting authorities it means a strict line — 'no ESPD = out' — is fully backed by the Council, even when the specification omits the sanction.
The lesson
Treat the ESPD as a hard requirement, not a formality. For every European tender (above threshold), a fully completed ESPD must accompany the bid at the moment of submission. If you forget it, the contracting authority cannot save you — even if it wanted to, because article 76 of the Royal Decree leaves no discretion. Build a final-check list before you submit in e-Tendering and put 'ESPD as PDF in bid' at the top.
Ask yourself
Before you submit your bid for a European tender: open your submission package and look for the PDF file labelled 'ESPD' or 'UEA'. Not sure? Open it, check that all parts are filled in (II A, III D, IV, VI) and that it is signed via the submission report in e-Tendering.
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 →