Two documents, equally bold, judged unequally: Brussels Environment rejected Heyrman-De Roeck while the winner was allowed to cure the same omission
The Council of State suspends the award of the renovation of the Bosvoorde racetrack to Sportinfrabouw: Brussels Environment declared Heyrman-De Roeck's bid substantially irregular because the commitment of a social-economy enterprise was missing, yet treated the winning bidder's failure to attach the — identically, in bold, prescribed — note on the production and installation of the fence as a merely non-substantial irregularity that could even be supplemented after the opening, which prima facie amounts to unequal treatment without objective and reasonable justification.
What happened?
Brussels Environment (Leefmilieu Brussel) launched a works contract for the renovation of both the racetrack and the historic fence of the Bosvoorde racetrack (reference 2022G0220), not divided into lots, with price as the sole award criterion. Article I.8 of the specifications ('Form and content of the bid') asked for nine documents to be attached, two of which — uniquely — were set in bold: the duly signed commitment of a social-economy enterprise to make its resources available (the so-called social clause), and a note on the production and installation of the fence, with the planning of all steps and an estimate of the time required. Four bidders submitted offers. Three of them, including NV Heyrman-De Roeck, were rejected for not attaching the social-economy enterprise's commitment; their bid was declared substantially irregular on 28 November 2022. The contract went to NV Sportinfrabouw. Heyrman-De Roeck brought an extreme-urgency action and, alongside a first ground, raised a second ground that became the heart of the case: breach of equal treatment (article 4 of the 2016 Procurement Act). The reasoning: if the winner's failure to attach the fence note is only a non-substantial irregularity, then the missing — identically prescribed — social-clause commitment cannot lead to the severe sanction of substantial irregularity either. Brussels Environment first argued that a rejected bidder has no interest in challenging the award to a competitor. The Council dismisses that objection: an excluded bidder does have an interest where the grounds show that its bid was wrongly rejected or that the contract could not lawfully be awarded to any bidder — and the equality ground aims precisely at the latter. If a breach of equality is found, the authority must resume the procedure, either by also declaring the winner's bid irregular, or by giving the three rejected bidders the chance to comply with the social clause; in both scenarios Heyrman-De Roeck still stands a chance. On the merits, the Council finds that both the social clause and the fence note were the only items set in bold in article I.8, evidently to stress their importance, indicating that both were regarded as equally important. The Council need not decide whether each document is among the minimum requirements — arguments exist either way — but finds that the authority dealt differently with two identically prescribed documents: the missing commitment led to substantial irregularity, whereas the winner, who had not attached the fence note, was allowed to provide it after the opening and received only a non-substantial irregularity. The authority's argument that the missing note did not prevent assessment or price comparison does not convince: the note is not an optional document, since the information it must contain matters for monitoring the performance deadlines — which affects the price (the sole award criterion) — and for technical conformity, given that this is a rather unusual historic fence requiring new moulds and bespoke parts. The Council concludes that the authority treated Heyrman-De Roeck's bid and the winner's bid unequally without objective and reasonable justification. The second ground is serious, and that suffices to suspend the contested decision. Sportinfrabouw's intervention is admitted, and the suspension of the award decision of 28 November 2022 is ordered.
Why does this matter?
This judgment shows the flip side of a strict regularity review: an authority that declares a missing document fatal for one bidder must apply the same standard to the other. A bidder who is rejected for a missing document need not necessarily accept the loss of its standing to challenge the award: by showing that the winner was shielded for a comparable shortcoming, it can argue that the contract could not lawfully be awarded to anyone — and thereby reopen the whole procedure. For authorities the lesson is just as sharp: the way the specifications present the requested documents (for instance by setting them all in bold) binds them, and a lenient stance towards the winner while penalising the competitors is a breach of equality that earns a suspension.
The lesson
When your bid is rejected, compare not only your own file with the requirements, but also how the authority dealt with identical requirements for the other bidders. Was a formally equivalent document — especially where the specifications impose both in the same way (for instance in bold) — overlooked for the winner or even supplemented after the opening, while you were declared substantially irregular for a mirror-image flaw? Then you have a strong equality ground, even though as an excluded bidder you may at first sight seem to lack interest: it is enough to show that the contract could not lawfully be awarded to anyone. And rebut the dismissive argument that the missing item 'did not prevent assessment': if the information bears on the performance deadlines, the price or technical conformity, it is anything but optional.
Ask yourself
Was your bid ever rejected because a required document was missing? Then check how the authority dealt with the same or an equivalent document for the winner. Were both items prescribed in exactly the same way in the specifications? Was the winner given the chance to supplement after the opening, or was its shortcoming dismissed as 'non-substantial' while yours cost you the contract? If so, you may have an equality ground that can suspend the whole award — even if at first sight you appear to lack interest.
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 →