Replacing the tender's templates with your own is allowed — provided every colour in your legend is defined and every frequency is linked to a specific cleaning task
The Belgian Council of State dismisses the extreme-urgency suspension filed by cleaning company Misanet against the award of the cleaning contract for the Mechelen police complex to Care: Misanet had not filled in the mandatory tables 1-9 for the cleaning regime but had replaced them with its own colour-coded tables, and had failed to define a frequency for the colour white while certain rooms (sanitary facilities, cell complex) required a daily regime — substantial irregularity confirmed.
What happened?
In June 2020 the Mechelen-Willebroek police zone launched a competitive procedure with negotiation for the interior cleaning of its police complex (sanitary, offices, cell complex, shooting range, workshops, underground garages…) for one year. The choice of negotiation was justified in the specifications by 'the need to find a balance between the available budget and the technical specifications' — the minutes of the police council of 25 June 2020 made clear that this referred to the impact of the pandemic on cleaning frequencies and price. Award criteria: price (50 points) and quality (50 points). The quality part had five components, including 'Frequencies of the tasks in the cleaning programme' (30/50). Under Part III, point G ('Cleaning regime'), the specifications stated: 'ESSENTIAL FOR THE OFFER !!! The bidder shall attach tables 1-9 below to its offer and complete the column proposed frequency (offer).' Three offers: Care, Itzu Cleaning and Misanet. Only Care was deemed compliant. Itzu Cleaning had submitted two offers (article 54 §2 of the Royal Decree on Procurement allows only one offer per contract) and used its own tables. Misanet had also omitted the prescribed tables, replacing them with its own colour-coded tables and a legend. On 10 September 2020 the police college awarded the contract to Care. Misanet filed an extreme-urgency suspension. First ground: attaching tables 1-9 verbatim is not an essential specification; its commitment to perform the cleaning programme appeared from the offer as a whole. The Council initially accepted the reasoning in principle — excessive formalism must be avoided, and the fact that the contracting authority did examine the alternative tables also pointed in that direction. But this was followed by a pivotal sentence: 'On this reasoning, however, it is required that the goal pursued by the relevant requirement is effectively achieved by the alternative method used by the applicant.' And that is precisely where Misanet failed. The legend explained every other colour — but not the colour white. The contracting authority gave a concrete example: all rooms with a sanitary or cell-complex regime should have been pink (twice a day, 7/7), but several such rooms in Misanet's offer were left white. And 'above all', by linking frequencies to a room rather than to a specific cleaning task in that room, Misanet provided 'no adequate insight into the relationship task-frequency' — which was 'the only purpose pursued by the requirement at issue'. The contracting authority did not act with 'excessive formalism', but rightly concluded that the commitment was uncertain and the objective comparison with other offers was prevented. Second ground: the choice of competitive procedure with negotiation was insufficiently motivated, the 'technical specifications' were not defined in the specifications, and reserving the right to award on initial offers without negotiation contradicted the objective element of article 38 §1 1° c. The Council answered that the police-council resolution of 25 June 2020 did clarify that 'technical specifications' referred to cleaning frequencies and tasks, and that the course of the pandemic constituted 'specific circumstances' within the meaning of article 38. As for the reservation, the Council referred to article 38 §5, last sentence: awarding on the basis of initial offers without negotiation is allowed if reserved in the contract notice — which was the case here. Moreover, Misanet had taken part in the procedure 'without reservation or remark' and challenged only the award decision — conduct that 'fits poorly with what may be expected from a loyal bidder'. Result: both grounds dismissed as not serious — extreme-urgency suspension rejected, Misanet ordered to pay 200 EUR roll fee, 20 EUR contribution and 700 EUR procedural costs to the police zone.
Why does this matter?
Two heavy lessons, both for bidders. First: 'excessive formalism' is a defensible argument against a finding of irregularity, but the burden of proof shifts to you — you must show that your alternative achieves the purpose of the rule effectively and without residual ambiguity. A legend that does not define the most common colour (white) is not an 'alternative method', it is a hole in your offer. And linking frequencies to a room rather than to a specific task in that room does not produce a comparable commitment. Second: challenging the contracting authority's choice of procedure is rarely successful when you took part in that procedure without reservation — the Council explicitly speaks of a 'loyal bidder' and uses that to relativise the seriousness of the ground. To preserve that argument, formulate your reservation upon receipt of the selection guide or specifications — not in the application after the award.
The lesson
When the specifications expressly state 'fill in table X, ESSENTIAL FOR THE OFFER': fill in the table. If you really lack space, add your own annex, but leave the original table completed and make sure your alternative covers everything the specifications require — not one colour undefined, not one room without task-specific frequency. Want to challenge the contracting authority's choice of procedure later? Do it upon receipt of the selection guide or specifications, in writing and with reasons — not only after the award.
Ask yourself
Does the specifications document contain a passage in which a table or form must be attached 'on pain of nullity' or 'essential for the offer'? Read it literally and check your offer: is the table there, in the exact format, with every column completed? If not — risk of substantial irregularity, regardless of how well your alternative is developed.
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 →