A 'reservation' about air freight and customs in your masks bid wasn't a useful clarification — it was a deviation from the delivery schedule that cost you the award
The Council of State rejects I'll Be Bag's challenge against the Covid mask procurement of 50 million Community masks (awarded to Avrox and Tweeds & Cottons): tendering with 'reservations' about transport and customs on a strict delivery schedule is legally a deviation — and challenging that deviation only later, in a supplementary note, comes too late and forfeits the right to attack the remaining grounds.
What happened?
On 24 April 2020, the National Security Council made covering 'mouth and nose' compulsory in public transport and strongly recommended in public spaces. Three days later, the Council of Ministers tasked the Defence Minister with buying masks for the Belgian population through a framework agreement under negotiated procedure without prior publication. Defence consulted 190 textile actors between 28 April and 2 May (coordinated by Créamoda and directly). On 3 May at 00:30, 41 firms were invited to bid by 4 May 15:00. Thirty firms bid, including I'll Be Bag, Tweeds & Cottons and Avrox. The specifications required an unconditional commitment to deliver guaranteed quantities on fixed dates: based on a first order before midnight on 5 May, the guaranteed capacity for week 20 had to be delivered before Sunday 17 May midnight; week 21 before Sunday 24 May; etc. Total guaranteed capacity for weeks 20-21 (then 20-21-22-23) was the first award criterion, price the third. Maximum price €2.50/piece excl. VAT, DDP Vilvoorde. No advance payment, no foreign currency. On 5 May, 30 bids were analysed. Only 4 met the selection requirement (declaration of prior delivery of at least 250,000 masks). Defence awarded to Tweeds & Cottons (first order 3 million masks) and to Avrox (first order 15 million masks, deliverable on 24 May). I'll Be Bag's bid was declared irregular on four separate grounds. First: no declaration with quantities and recipients of prior deliveries of 250,000 masks (§6.c). Second: a request for a 30% advance, while no advance was permitted. Third: a reference to USD exchange rate for the price calculation. Fourth — the crucial ground — a 'deviation from the delivery schedule'. I'll Be Bag had filled out the bid form with the requested quantities, but had added on its own initiative: for weeks 20 and 21 that 'delivery dates depend on the air freight to be reserved and on customs procedures for which we will need privileged contacts', and for the other weeks that 'delivery capacity is a function of transport capacity and public holidays'. In its application I'll Be Bag challenged the first three grounds but kept silent on the fourth. Only in its supplementary note — over a week later — did it add objections to the 'deviation from the delivery schedule'. The Council declares this new objection inadmissible as too late: the ground was 'parfaitement intelligible' from the specifications and its own bid form; it should have been challenged from the application. Since this single uncontested ground suffices on its own to declare the bid irregular, I'll Be Bag loses interest in challenging the other three grounds and the regularity of the winning bids. The Council nevertheless examines the other grounds in the alternative. Two notable findings: On price examination of the winners: the average of regular bids was €2.30/piece excl. VAT, the overall average €2.10/piece. Both winners offered €2.50/piece — at the cap. Defence built a comparative table, considered the prices 'acceptable' and decided not to launch an Article 36 inquiry. No manifest error of assessment. The Council adds that I'll Be Bag's own prices of €0.67 and €0.80 cannot serve as benchmark — partly because its bid sought an advance and a deviating delivery schedule, suggesting it had limited its financial risk to be able to offer those lower prices. On the choice of negotiated procedure without prior publication and a framework agreement until 31/12/2020 (extendable 1 year): the Council reviews the timeline. Until early April 2020 the WHO advised against general mask use by healthy people. Only on 22 April (G.E.E.S. opinion) was general mask wearing recommended, and the Security Council followed on 24 April. The Council of Ministers decided on 27 April, prospection ran until 2 May, award on 5 May for delivery on 17 and 24 May. Causal link between unforeseeable event (Covid) and urgency proven. A framework agreement until 31 December 2020 plus 1 year extension fits within the legal four-year maximum (Article 43 Law 2016). The broad prospection (190 actors) ensures sufficient competition. Questions of execution — wrong subcontractors, late deliveries, washing instructions at 30° instead of 60° — fall outside the Council of State's competence (ordinary courts handle execution of the framework agreement). Avrox's request for damages for 'reckless and vexatious' proceedings (€6,187,000, 5% of the weeks 20-23 schedule) is rejected: I'll Be Bag was not acting maliciously but defending rights. Suspension rejected, immediate execution.
Why does this matter?
This judgment matters for two reasons. One: it shows how a single 'explanatory reservation' on a signed bid form is legally read as a deviation from essential requirements — even when meant as 'context' or 'reality check'. A bidder competing for a contract with strict delivery deadlines who adds to their quantities 'subject to flights / customs / transport / public holidays' provides legally not a firm commitment but a conditional engagement — and that is not what the specs ask for. Two: it confirms once more that as soon as a single irregularity ground for your own bid stands, you lose your interest in challenging the other grounds or the regularity of competitors. So your application must attack each separate ground from day one — not later in a supplementary note. And for those interested historically: this is the Avrox masks case, a major crisis purchase that later had political tails but where the award decision itself held up legally.
The lesson
When specifications require guaranteed delivery capacity on fixed dates, write only the guaranteed quantities in the bid form. Do not add 'context' on transport, flights, customs, public holidays, weather or other dependencies. Such mentions are read by the contracting authority as 'reservations' and as deviations from minimum requirements. If you need to flag risks, do so in a separate cover letter — not on the signed bid form itself. And second lesson for those filing for suspension: challenge every irregularity ground for your bid from the application itself, even if you think one ground is weaker. Adding what you had not challenged in a supplementary note means being too late.
Ask yourself
Two tests before submitting a bid with strict delivery deadlines: (1) Is there anywhere in my bid form — not in a separate letter, but in the signed form itself — wording that makes my commitment conditional ('subject to', 'depending on', 'unless', 'if possible')? Remove it. (2) Does my bid request an advance or down payment while the specs do not provide for it? Remove or revise. (3) Does my price refer to a foreign currency while the specs require euro? Revise the bid. Two tests before filing a suspension request: did my application explicitly attack every irregularity ground for my bid? Did I substantiate each ground with arguments and not merely general challenges?
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 →