The contracting authority that would have 'rescued' Flowbird with a question would have breached the equal treatment principle itself
The Council of State rejects Flowbird's extreme-urgency challenge against Parking Brussels' award to Be-Mobile of the Business Rules Engine contract: a 'technical note' of five pages required on pain of nullity cannot be replaced by a 114-page Technical Memorandum or a 14-page Helicopter Vision — and the contracting authority would have been wrong to ask Flowbird about it.
What happened?
Parking Brussels — the Brussels regional parking company — launched a European open public contract for the implementation and maintenance of a Business Rules Engine centralising all rules for granting parking rights. Three bidders submitted: the incumbent Flowbird, ACA-IT Solutions, and Be-Mobile. The specifications were unambiguous on one point: Article 8.6, fifth bullet, required bidders to attach 'on pain of nullity' a 'technical note of maximum five A4 pages' describing the major points of their offer in terms of technical quality. Article 15.3 reinforced this: seven separate documents (helicopter vision, detailed description, screenshots, Gantt-chart planning, sample 'agreements and procedures' file, sample monthly report, termination plan), AND on top of those seven, the technical note. On 17 December 2021 Parking Brussels declared Flowbird's bid null and void on two irregularity grounds. (1) No technical note. Flowbird had attached a 114-page Technical Memorandum and a 14-page Helicopter Vision, but no separate five-page document. (2) Reservation on Zabbix monitoring compatibility. The specifications (article 32.6 + Annex 4) required the solution to be at least compatible with Zabbix. Flowbird wrote in its bid that full integration of its monitoring into Zabbix would require Parking Brussels to host Flowbird's full solution, which 'is not the object of the contract and is not desired', and that 'depending on the complexity of the work, an addendum or a new contract may be set up'. In other words: Zabbix compatibility remained conditional and could carry extra cost — contrary to the fixed-price principle (Article 9 of the 2016 Public Procurement Act). Be-Mobile won. Flowbird filed for extreme urgency on 31 January 2022 with three pleas. The first plea: Be-Mobile would not satisfy selection criterion 13.1 (three Business Rules Engine references) and the award decision was insufficiently motivated on this. The second: Zabbix would favour Be-Mobile and the FAQ answers had given Flowbird the impression that arrangements could be ironed out later. The third: Parking Brussels should have asked Flowbird a question before excluding her — Flowbird produced as Document 7 a 'sample of how to summarise pages 4-9 of the Helicopter Vision into five pages', showing a technical note had been entirely possible. Counsellor David De Roy rejects all three. On the first: Be-Mobile produced five rather than three references, with execution certificates; the Council does not substitute itself for the contracting authority absent manifest error of assessment, and that error is not even alleged. A succinct motivation suffices when selection raises no particular issue. On the third — the most striking part — the Council recalls that the technical note was expressly distinct from the other documents. Flowbird itself effectively concedes the document was missing by producing in Document 7 a sample of how it could have been written. Then comes the key passage: 'Had the defendant questioned the applicant, it would necessarily have breached the contract documents and the principle of equal treatment of bidders.' A contracting authority cannot 'help' by asking 'where is the document?' when the absence is sanctioned with nullity — that question itself would be unlawful. On the second plea: since the first ground (missing technical note) stands as an autonomous exclusion ground, Flowbird has no interest in the second plea, even if it were serious — it cannot reverse the award. Outcome: rejected, Flowbird pays 200 € roll fee, 22 € contribution and 700 € procedural indemnity to Parking Brussels.
Why does this matter?
Bid managers at incumbents often share the same uncomfortable instinct: 'we sent everything, more than asked, and we are eliminated on a formality.' This judgment explains very precisely why 'more is more' does not work when a document is required on pain of nullity. The specifications asked for seven documents PLUS a separate five-page technical note. Flowbird sent 114 pages and 14 pages and hoped that was enough. It was not. The authority wanted, via the technical note, to identify quickly what each bidder considers the critical points — it is a functional document, not filler. The second, intuitively painful, lesson is that Parking Brussels was NOT ALLOWED to give Flowbird a second chance. A clarification question about a missing 'on pain of nullity' document would have breached the principle of equal treatment. The other bidders did produce the document; Flowbird may not now retroactively claim that the content sits 'hidden' on pages 4-9 of its Helicopter Vision. This is not 'strict', this is structural: the law here does not protect the authority but the other bidders against unequal treatment. Finally: when there are multiple exclusion grounds, you must overturn all of them. Flowbird had two autonomous grounds. Even if the second (Zabbix) had been declared serious, the first standing alone would have killed the case.
The lesson
If a document is required on pain of nullity AS A SEPARATE PIECE, deliver it as a separate piece — even if all the content is already in a larger document. And do not bank on the contracting authority asking 'where is it?': if you are right, that question would itself breach the principle of equal treatment. Hoping for a rescue means hoping for an unlawful act.
Ask yourself
The specifications require 'on pain of nullity' a document of X pages on topic Y, and you have a longer document covering the same content: extract those X pages as a standalone file, named exactly as the specification names it. Doubt? Look at the file names of your bid documents — if none literally bears the title the specs use, you are at risk.
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 →