In a negotiated procedure you may let the winner cure a missing electronic signature — provided you motivate it 'in pure opportunity'
ETNIC was allowed to let BONJOUR INC cure its missing qualified electronic signature and then award the Pix promotion campaign — the Council finds the short motivation ('we regularise as a matter of opportunity') sufficient in a negotiated procedure without publication.
What happened?
In October 2022 ETNIC, the IT public agency of the French-speaking Community, launched a negotiated procedure without prior publication for a service contract: design and management of a communication campaign promoting the digital Pix platform (assessment and certification of digital skills under the European DIGCOMP framework). Five firms were consulted under article 42, §1, a) of the Act of 17 June 2016. The specifications (CSCh) provided five price items: items 1 to 3 (communication plan) at a fixed lump sum, items 4 and 5 (working days + execution) per unit (price schedule). Point 2.3.3.1 required a 'qualified electronic signature'. Bleustein bid first on 27 October 2022. On 9 November ETNIC asked her to move production costs from item 4 to items 1 to 3 (because another bidder had filled the form that way). Bleustein adjusted her inventory expressly marking it 'indicative' while her original bid remained. On 10 November ETNIC asked for a best price; Bleustein granted a 3% discount. On 17 November the award went to BONJOUR INC. Bleustein filed for urgent suspension with three grounds. First ground: ETNIC altered the price criterion against the specifications (items 1-3 no longer evaluated as a lump sum) — breaching article 42, §2, paragraph 2 of the 2016 Act prohibiting negotiation of award criteria. Not serious. Second ground: not serious. Third ground — the most interesting — concerned BONJOUR's electronic signature. BONJOUR's bid lacked a qualified electronic signature as required by point 2.3.3.1. ETNIC invited BONJOUR to sign again on 3 November 2022 with a valid signature, which it did. Bleustein argued: curing a substantially irregular bid (missing signature) is a discretionary act, and that discretionary choice must be explicitly motivated — which ETNIC failed to do. The Council disagrees. Article 76, §5 of the RD of 18 April 2017 allows in a negotiated procedure without publication to cure even substantial irregularities or to declare the bid null. ETNIC did motivate in its award decision: 'the authority saw the bid signed electronically, could not determine whether qualified, asked the bidder on 28 October, and invited a new qualified signature with the inventory change'. That motivation conveys the choice 'in pure opportunity' sufficiently. Bleustein essentially demanded 'reasons for the reasons', which is not part of the duty to state reasons. Third ground not serious. Urgent suspension rejected. Costs reserved.
Why does this matter?
For bid managers: in a negotiated procedure without prior publication the authority has very broad room to cure irregularities thanks to article 76, §5 of the RD of 18 April 2017 — even substantial irregularities like a missing qualified electronic signature can be remedied. What would eliminate you in an open tender often saves you here. For authorities in negotiated procedures: you have wide freedom to cure, but always briefly motivate why you cure rather than exclude — a few clear sentences will do.
The lesson
Working on a negotiated procedure without publication and missed a formality (signature, date, statute page)? Don't wait for the authority to remind you — proactively ask whether you can cure it. Article 76, §5 of the RD of 18 April 2017 allows it, and the Council confirmed here that a brief 'opportunity' motivation is enough. As authority: note in every evaluation report why you chose to cure — even briefly. An empty decision is a UDN risk.
Ask yourself
Have you an evaluation report with regularisations in a current negotiated procedure? For each regularisation: is there a short sentence on why you cured (rather than excluded)? One line suffices ('opportune given limited impact', 'bidder corrected quickly'), but the line must be there.
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 →