A two-phase bid where phase 1 fails the minimum requirements is simply irregular — phase 2 will not save you, however brilliant
The Council of State rejects French supplier TONWELT's urgent suspension request against the award of multimedia devices to TAPART: even openly disclosing that your first delivery has a screen smaller than the specifications require (4.3 instead of 4.5 inches) is a substantial irregularity that voids your entire bid — a phase 2 with a 6.3-inch screen in 2020 does not cure it.
What happened?
On 23 August 2019 the Royal Museums of Art and History (RMAH) launched a European open procedure for the rental of multimedia devices with CMS for the Musical Instruments Museum (MIM) in Brussels. The specifications set three award criteria (price, software/CMS quality, device quality + maintenance) and — critically — a minimum technical screen diagonal of 4.5 inches. Under the third criterion, each extra inch up to 6.5 inches earned an extra point. On 16 September 2019, before bid submission, TONWELT asked unambiguously via the e-procurement forum whether a 4.3-inch device would be accepted or automatically rejected. On 19 September 2019 the contracting authority replied unambiguously: the specs require a minimum 4.5-inch screen as a technical requirement; smaller screens cannot be considered. Despite that, on 27 September 2019 TONWELT submitted a two-phase offer. Phase 1 (immediate, 15 October 2019): the 'supraGuide Touch' — a device of which TONWELT itself wrote in its methodology: 'this material fully complies with the specifications, except for the screen size of 4.3 inches instead of the 4.5 inches required.' Phase 2 (February/March 2020): the 'supraGuide DIVA' — a new device with a Full HD+ 6.3-inch screen and innovative features (8-core processor, 4 GB RAM, augmented reality, fingerprint reader, UWB localisation to 10 cm). Three bids passed the formal regularity check, including TONWELT's. All three were invited to the CMS demonstration on 8 October 2019 (award criterion 2). At that demonstration TONWELT presented only the future DIVA device with its 6.3-inch screen. But the substantive regularity check came after the demonstration. On 12 November 2019 the contract was awarded to TAPART; TONWELT's bid was declared irregular for failing to meet the minimum screen size. TONWELT brought the matter to the Council of State without counsel. Its argument: the contracting authority had only looked at the temporary phase 1; it was unfair to invite TONWELT to the demonstration if the bid was already irregular; and the specifications were incomplete on infrared transmitters. The Council sides entirely with the contracting authority. Article 76 §1, third paragraph, 3° of the Royal Decree of 18 April 2017 qualifies non-compliance with explicit minimum requirements stated in the procurement documents as a substantial irregularity — which in an open procedure forces nullification (§3). The specs explicitly described 4.5 inches as a 'technical requirement' (the specs further provided that bids 'adding conditions that do not unambiguously demonstrate acceptance of the specs' would be considered substantially irregular). The fact that phase 2 would comply is 'irrelevant in this respect'. Inviting TONWELT to the CMS demonstration could not create legitimate expectations: that step was tied solely to award criterion 2 and not to substantive regularity. Suspension rejected; €700 procedural indemnity charged to TONWELT.
Why does this matter?
For bidders this judgment teaches two lessons that go wrong often. First: a 'minimum requirement' is not a wishlist. It is an exclusion threshold. Whether you need 4.5 inches and offer 4.3 inches, or a 60-day delivery and offer 65 days — if the contracting authority explicitly labels the element as a 'minimum' or 'substantial' requirement, you risk irregularity without any margin for evaluation. The threshold counts, not the weighted score. Second: a 'phased' offer with a temporary deviation is not the same as an offer with an upward evolution. What you deliver in phase 1 is what the contracting authority assesses as the baseline. Phase 2 is no licence to dip below the minima in phase 1. If you want to be creative with phasing, do so outside the minimum requirements — on elements that do allow positive evolution without conflicting with substantive requirements. For contracting authorities this judgment supports strict enforcement of technical minima: you do not have to reward bidder creativity that comes at the expense of your requirements, even if you have already conducted demonstrations. The order 'demonstration → substantive check' is legally sound.
The lesson
If you contemplate a phased or transitional bid, list the minimum requirements separately and tick each: does your offer meet every minimum from day 1 of execution? If not — rework phase 1 until it does, or do not bid at all. Stating in your bid that 'our device falls 0.2 inch below the minimum' is no mitigation but an explicit acknowledgment of the irregularity. And even if you asked a question on the e-procurement forum and received confirmation that the minimum is hard — your deviating offer is not 'transparent', it is deliberately irregular.
Ask yourself
Did you ask a question on the e-procurement forum to which the contracting authority confirmed that a particular requirement is a 'minimum' or 'technical requirement'? If your final bid deviates on that point — even in a 'temporary' phase 1 — the chance of irregularity is essentially 100%. Being invited to demonstrations or presentations does NOT mean your bid has been found regular: that check is separate and may follow the demonstration.
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 →