When four out of five bidders deviate from the zoning plan in identical fashion, the problem is not with the bidders
The Council of State suspends under extreme urgency the award of the design-and-build contract for the new Neptunus swimming pool in Ghent because TMVW declared the bids of four of the five bidders substantially irregular — after eight months of negotiations — for a zoning-plan deviation that the specifications never expressly excluded, and then refused the regularisation opportunity the specifications themselves promised.
What happened?
In late 2020 the inter-municipal water utility TMVW launched a design-and-build procurement for a new swimming pool and youth-services building on Ghent's Neptunus site, using a competitive procedure with negotiation. Specification 13.1 expressly stated that bidders 'shall' be offered the chance to regularise substantially irregular bids before negotiations. Six candidates were selected; five submitted a bid; three reached the shortlist (the TM Furnibo-Persyn/LD-Architecten, S&R Neptunus, and the Triton Consortium from Zeebrugge). Before the second round of negotiations TMVW asked Ghent's urbanism department to test permit viability — and was told that the applicable zoning plan (RUP Neptune, Zone Z2) prohibits underground structures deeper than 2 metres below ground level. Four of the five bidders had deviated from this rule. Furnibo-Persyn put its basement at 3.10 m, S&R Neptunus at 3.05 m. Only Triton kept the entire building above ground. Instead of offering regularisation, TMVW declared both non-compliant bids substantially irregular in its award report of 28 February 2022 and awarded to Triton on 4 March 2022 (ratified 24 March). The losing team filed in extreme urgency. Counsellor Patricia De Somere upholds both pleas. (1) The specifications contained no express rule that zoning deviations were excluded: they only required compliance with 'applicable' urban-planning rules and stated that a RUP was applicable. 'Minimum requirements' in chapter 2 referred to the programme of requirements for the pool itself, not to the RUP which the spec described as 'boundary conditions'. TMVW itself apparently did not know of the 2-metre rule until the urbanism department pointed it out; and the fact that four of five bidders deviated identically confirms the specifications did not make the strict reading clear. (2) TMVW's regularisation analysis was flawed: it examined only the most invasive scenario — removing the basement altogether or lifting it to ground floor — and concluded this would be a new bid. The bidders had offered a far less invasive alternative (lifting the whole concept by 1.10 m to reach the permitted 2-metre depth) which TMVW never examined. The motive that 'the timeline leaves no room' for a permit with derogation contradicted the spec itself, which described the timeline as 'indicative' and scored it as a 5% award criterion. Conclusion: breach of the duty of care and of the duty to state reasons. Both the 4 March and 24 March decisions are suspended.
Why does this matter?
This ruling hits two classic pitfalls. For contracting authorities: if your specifications say bidders must comply with 'applicable' regulations, you cannot add later — in the award report or in your pleading — that the usual derogation possibilities under planning law were also excluded. If you want to rule out derogations from a particular rule, say so explicitly, name the rule, and call it a minimum requirement. The fact that four of five bidders made the same 'mistake' is a red flag the Council takes seriously — it shows the reasonable reader of the specifications understood things differently. And: if your specifications promise regularisation before negotiations (as Article 76 §4 of the Royal Decree of 18 April 2017 allows you to), that promise binds. You can still refuse regularisation if an amendment amounts to a new bid — but you must seriously examine every scenario the bidder proposes, not just the worst-case one.
The lesson
If, after months of negotiation and shortlisting, you are suddenly told your bid is 'substantially irregular' for breaching a rule not literally contained in the specifications (urbanism, environment, labour law…): check whether several bidders deviate identically and whether the specifications foresee regularisation. If both, propose concrete regularisation scenarios yourself and insist the authority analyse each one, not only the most invasive.
Ask yourself
You are declared substantially irregular after shortlisting because of a rule not expressly spelled out in the specifications: do other bidders deviate in the same way, and does the specification promise regularisation before the final bid? If yes to both: extreme-urgency review is worth it.
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 →