A 'NOK' that becomes 'OK' after follow-up questions is not automatically an unlawful regularisation — if it concerns selection, not the offer itself
The Council of State dismisses Coeman Repatriëring's suspension against the award to Depannage Lybaert of the South-East towing lot, because the additional information the contracting authority requested on staff, premises and intervention vehicles did not fall under the strict regularisation rules for offers, but under the more lenient rules for requesting evidence of technical capacity.
What happened?
The Flemish Roads and Traffic Agency (West-Flanders) launched 'Project F.A.S.T.' — incident handling on motorways, towing and removing vehicles of more than 3.5 tonnes — in three lots via open procedure with price as the only criterion. For lot 3 (South-East), two bidders submitted: Coeman Repatriëring and Depannage Lybaert. During the regularity review, Lybaert was found not to demonstrate that it itself, as main contractor, had at least 50% FTE administrative staff (the 100% FTE it listed was at a subcontractor); supporting documents on its class 3 premises and on the MTM towing capacity of intervention vehicle no. 5 were also missing. On 5 November 2021 the authority sent Lybaert a request for additional information and gave it the chance to demonstrate that in the calendar year before the publication it did meet the requirements. Lybaert delivered documents between 8 and 19 November. The award report of 18 January 2022 turned three 'NOKs' into 'OKs' and awarded the lot to Lybaert. Coeman went to the Council of State in extreme urgency on three grounds: (1) the motivation does not show why the offer first looked irregular and then suddenly regular, (2) neither Lybaert nor its subcontractor Demunster (excluded from lot 2) really meet the selection criteria, and (3) the additional information amounted to an unlawful regularisation of an irregular offer. The Council dismisses the entire ground. The key point: the questions of 5 November 2021 were not about the regularity of the offer (art. 81 of the 2016 Act, art. 76 of the Royal Decree), but about the technical and professional capacity of the bidder (art. 66 §3 of the 2016 Act, art. 68 of the Royal Decree). That is a different legal regime: the authority may request supporting documents for selection after opening, provided equal treatment and transparency are respected and no essential elements are changed. Crucially, the requested data concerned the calendar year before publication: 'purely objective and unchangeable facts'. You cannot retroactively change which staff or which premises you had in 2020. Asking for them does not jeopardise equality between bidders. The motivation 'initial doubt, removed by additional information' was sufficient. The material error in the subcontracting contract (wrong reference) was accepted because the heading mentioned lot 3. Demunster's exclusion from lot 2 did not carry over to lot 3, because lot 2 involved a different factual configuration. Application dismissed, Coeman pays court costs and €700 procedural indemnity.
Why does this matter?
This is one of those cases where the outcome painfully depends on the correct legal qualification. Coeman thought — not unreasonably — that an offer that first received 'NOK' on staff and premises and then 'OK' after one email was an irregular offer being unlawfully regularised. That is true only if the defects related to the offer itself. Here they related to the bidder — the capacity and equipment Lybaert had in the calendar year before publication. Selection requirements (technical capacity) follow different rules than regularity: the authority may actively follow up, and as long as the period is closed, the bidder cannot 'adjust' factual reality. Lesson: in your award report, name the legal basis (art. 66 §3 — selection, vs. art. 76 RD — regularity). For bidders: before building a suspension on this ground, check whether the contested 'regularisation' actually concerned the offer itself.
The lesson
If as a losing bidder you read that the winner had a 'NOK' on selection requirements that became 'OK' after additional information, do not jump immediately to the regularisation argument (art. 76 RD). First check: did it concern characteristics of the offer (price, quantities, reservations) or characteristics of the bidder (staff, equipment, premises, experience)? In the second case it falls under art. 66 §3 of the 2016 Act — there the authority is allowed to request information. Second check: did the requested information concern a closed period (such as 'the calendar year before publication')? Then it is also unchangeable, making an equality breach hard to maintain. If you still want to attack, focus on motivation: whether the award report concretely explains why the initial doubt was removed.
Ask yourself
If your award report contains a 'NOK → OK' after a question to a bidder, before signing check: (1) is the legal basis clearly identified (art. 66 §3 selection vs. art. 76 RD regularisation), (2) does it concern a closed period (objective, no longer modifiable), (3) did all bidders in comparable situations get the same opportunity? If the answer is 'no' to any of the three: revise before publication.
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 →