If the tender documents make award conditional on a homologation 'before award', its absence is automatically a substantial irregularity
The Council of State rejects the suspension of a contract for 60,000 LED luminaires for the Liège grid operator RESA: by stating in the specifications that the luminaire model must have obtained the Synergrid '005' homologation 'before award of the contract', the specifications themselves qualified this as a minimum and substantial requirement — so Lightwell and Axioma's offers could be excluded as substantially irregular even though they had been invited to a BAFO and offered competitive prices.
What happened?
RESA Innovation et Technologie (the Liège intermunicipal grid operator) launched a procurement for 60,000 LED luminaires for public lighting, divided into two lots (40,000 and 20,000 units), under the negotiated procedure with prior call for competition in the special sectors. Execution period: 06/2022-12/2025. The specifications, section III.1 'Preliminary remarks', stated: 'The luminaire model must be homologated 005 – Synergrid, before award of the contract.' Lightwell B.V. (Netherlands) and Axioma submitted a joint offer and ranked highest in a first award decision of 16 November 2022 — lot 1 to them, lot 2 to Schreder BE. Signify Belgium (third) appealed; arrest no. 255.378 of 23 December 2022 suspended that award. RESA withdrew the award on 11 January 2023 and re-examined the offers. On 17 February 2023, RESA declared Lightwell/Axioma's offers 'substantially irregular' for both lots because their proposed luminaire lacked the '005-Synergrid' homologation, and awarded lot 1 to Signify and lot 2 to Schreder. Lightwell/Axioma filed an extreme-urgency suspension. Three grounds: (1) material conformity with the underlying C4/11.3 specification was demonstrated in the technical file — not serious: non-compliance with the homologation requirement itself suffices. (2) Discrimination: Signify's and Schreder's offers were declared compliant with 'Zhaga book 13' without the same strict verification — not serious: the contracting entity can verify Zhaga conformity itself based on technical documents, and the confidential 'technical requirements checklist' shows it did. (3) No motivation why the absence of Synergrid homologation is a substantial irregularity — not serious: by requiring in the specifications that the homologation be obtained 'before award', the specifications themselves qualified the requirement as minimum/substantial. The contracting authority could logically classify the absence of homologation as a substantial irregularity without further motivation. The fact that Lightwell/Axioma had been invited to submit a BAFO did not change this: article 74 §4 of the Royal Decree of 18 June 2017 requires invalidation when a substantial irregularity is found, but does not prohibit finding it after negotiations have started — especially where the first award was suspended by the Council of State and had to be re-examined. The three grounds were not serious; suspension denied.
Why does this matter?
This ruling clarifies when a contracting authority can classify an irregularity as 'substantial' without further formal motivation. The key lies in how the specifications themselves are phrased. If the specs say 'before award X must be obtained' or 'condition for participation', the specs have already made the qualification — the later award decision need not explain why this is substantial. For contracting authorities this is a tool: use phrasing that protects you from the motivation duty. For bidders, the ruling sheds different light on the BAFO process: just being invited to a BAFO does not mean you are deemed compliant. The authority can still find at a later stage that an earlier offer was irregular — especially after a suspension and re-examination. Practical takeaway: read the 'Preliminary remarks' or 'General terms' chapter of any specs very critically — that is where the truly hard requirements live, and it is leverage for both motivation and challenge.
The lesson
If as a contracting authority you want to make a requirement substantial without later having to motivate it in the award decision: write explicitly in the specs 'before award X must be obtained' or 'on pain of substantial irregularity'. The specifications then make the qualification themselves. Do not use vague phrasing like 'a homologation is desirable' when you actually mean it is mandatory. As a bidder invited to a BAFO while you know a formal certification is missing and hope material conformity will suffice: fix it before submitting the BAFO, or ask the authority for written clarification. A BAFO invitation is no shield against later exclusion for irregularity.
Ask yourself
Do the 'preliminary remarks' or 'general conditions' of your specifications contain phrasing such as 'before award', 'mandatory', 'on pain of exclusion', 'substantial' for the critical requirements? If so, they stand strong. Threshold for bidders: when a requirement in the specs is tied to a moment 'before award', its absence is a substantial irregularity that needs no further motivation — do not commit to participating without being able to fulfil that condition.
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 →