Did a tender clause look unclear? Ask for clarification during the procedure — afterwards is too late
The Council of State rejects the extreme-urgency suspension against the award of the digitisation of Verviers' civil registry to Vanden Broele because ADM Village only complained about 'incomprehensible' tender clauses after losing — while during the procedure it never asked for clarification and in its reply to the contracting authority's question even showed it understood the requirements, only that it found its own interpretation to offer more 'added value'.
What happened?
The city of Verviers issued a services contract for scanning, indexing and individualising the registers of the civil registry and migrating those records to the federal BAEC database. Estimated value was 830,000 € excluding VAT. The tender documents described three components: scanning, indexing, and migration to the BAEC. For the third component, the documents stated explicitly that 'the contractor will then migrate all consolidated acts to the BAEC according to the principles set out by the ASA'. They mentioned that the indexing format was imposed by CIVADIS — owner of the SAPHIR software used by Verviers — but did not designate CIVADIS as a mandatory subcontractor for the migration. Four bidders responded. ADM Village offered 271,128.58 € (incl. VAT), well below Vanden Broele's 391,798 €. ADM Village therefore scored high on price. On the quality criterion 'quality of service and continuity' (20 points), however, ADM Village received only 5 points because the third component — migration to the BAEC — was not developed in its offer. ADM Village had answered a clarification question from the authority that it saw no 'added value' in performing the third component itself and that CIVADIS would handle it. Final ranking: Vanden Broele 83.32 %, ADM Village 77.56 %. ADM Village went to the Council of State arguing that the tender clauses on migration were 'incomprehensible' and 'contradictory' — that bidders supposedly had to migrate themselves and at the same time could not, because only CIVADIS has access to SAPHIR. The Council rejects the plea on a double finding. First: clauses III.8 and III.9 unambiguously place the migration task on the contractor. The fact that ADM Village considered its own intervention to add no value does not make the clause incomprehensible — it just means it followed its own interpretation. Second, and this is the real lesson: the 'incomprehensibility' of the clause was not as evident at the time as ADM Village now claims, because during the procedure it never sought clarification, and when Verviers asked on 20 December 2022 about how the migration component was being handled, ADM Village did not flag any ambiguity but answered with its 'added value' reasoning. The suspension is rejected; ADM Village pays the 770 € procedural costs.
Why does this matter?
This ruling exposes a tactical rule every bid manager must know: an unclear tender clause that you let pass cannot later be turned into a weapon. Case law does not require challenging the tender documents during the placement phase — you can still raise irregularities of the documents against the award decision — but in the factual assessment of a 'transparency breach' it weighs heavily that you did not raise the issue during the procedure. The case also illustrates how choosing to interpret a delicate clause 'creatively' ('we see no added value, let CIVADIS handle it') can cost you points on the quality criterion — while the same question, raised as a clarification request to the authority, might have triggered an addendum that everyone would have had to answer the same way. The price advantage of over 120,000 € was ultimately not enough to compensate the loss in quality.
The lesson
If a tender clause looks unclear, or if your reading materially deviates from the literal text, ask for clarification during the placement phase through the official channel and make sure the authority communicates the answer to all bidders. If you don't and you interpret the documents according to your own 'added value' logic, you risk a double loss: the authority gives you few points on the quality criterion AND the Council of State will not back you when you later invoke a transparency breach.
Ask yourself
Are you reading a tender clause that leaves you hesitating between two interpretations? Ask yourself one question: did I file a written clarification request before the submission deadline? If not, and you decided on your own which is the 'most reasonable' reading, you have effectively forfeited your right to attack that clause as 'incomprehensible' afterwards.
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 →