Rejecting bidder A for a specific shortcoming while admitting bidder B with exactly the same shortcoming is not allowed
The Council of State annuls the award of a Liège public works contract because the city declared Genetec's offer irregular for missing a detailed cost calculation of safety measures, while the winning Yvan Paque offer on that very point contained only two lump sums — without any detail.
What happened?
The City of Liège launched in late 2016 a negotiated procedure with publicity for the replacement of traffic lights at two intersections — the specifications (CSC 2016-535) required, on penalty of absolute nullity, an annex containing 'a detailed calculation of the cost of the prevention measures and means determined in the safety and health plan'. The specifications referred to an ad hoc form and specified that the bidder had to quantify the estimated cost 'for the main chapters of the bid'. On 19 December 2016 Liège declared Genetec's offer irregular, motivating among other things: 'firm GENETEC did not attach a calculation note detailing the cost of the implementation of the prevention measures (…) while firm YVAN PÂQUE did attach such a calculation note'. The contract was awarded to Yvan Paque. Genetec went to the Council. A first ruling (n° 248.956 of 17 November 2020) partly dismissed the action but reopened the debates; a second ruling (n° 249.290 of 18 December 2020) lifted the confidentiality of pages 112-114 of the Yvan Paque offer — which the city itself had kept confidential until then. There it appeared what the famous 'calculation note' of Yvan Paque actually was: a single sentence plus two amounts. 'In our opinion, all activities of this project are general activities. We therefore estimate a single cost per tranche. Tranche 1: 1105 € excl. VAT. Tranche 2: 1029 € excl. VAT.' That was all. No subdivision per chapter, no underpinning, no detailed calculation. Genetec raised a new plea on the equality principle: the same offer that according to the city is irregular for Genetec is declared regular for Yvan Paque. The city argued: the plea is late (Genetec could have asked for confidentiality lifting earlier) and unfounded (the two bidders were in different situations). The Council rejected both. On admissibility: the reproach is 'in contradiction with the attitude of the opposing party which had itself requested the maintenance of confidentiality'. On the merits: 'the mention of the two amounts announced in the Yvan Paque offer, without any other precision than the indication of the tranches to which they relate, cannot reasonably be considered as meeting the requirement of presentation of detailed costs'. If Genetec's figures were inadequate, 'a similar finding had to be made about the Yvan Paque offer'. The two bidders were in a comparable situation and were therefore treated unequally. Annulment of both the irregularity declaration of Genetec and the award to Yvan Paque.
Why does this matter?
This ruling addresses the most classic pitfall in offer evaluation: applying the same standard strictly to one offer and leniently to another. The equality principle forbids this — not abstractly but very concretely. If you as a contracting authority impose a formal requirement (here: detailed calculation note for safety costs on penalty of absolute nullity), then that requirement must be tested against all offers with the same rigour. A few amounts without detail cannot be accepted as a 'calculation note' from one and refused as 'insufficient' from another. When in doubt: either regularise both offers through clarification, or reject both. What you cannot do: explain away the irregularity in the winner by suggesting that 'the situations are not comparable'. Here the city additionally tripped over its own confidentiality strategy: by keeping the winning offer confidential, the applicant could only verify after that confidentiality was lifted that the winner had the same shortcoming — which makes a 'late' plea precisely admissible.
The lesson
If you declare an offer irregular for a formal shortcoming (no detailed calculation, no certificate, no signature in the right place), then systematically check whether the winning offer meets that very requirement — not what the winner has filed under that heading, but whether that materially is the same answer to the same requirement. Two lump sums without detail are not a 'detailed calculation', regardless of what the accompanying sentence says. And if you choose to keep an offer confidential: bear in mind that a later lifting may open new pleas that were otherwise unknowable — the 'lateness' of those pleas then falls back on you.
Ask yourself
For each shortcoming for which you rejected an offer: can you explain in one sentence what the winner submitted on that exact point? And can an external reader (lawyer, auditor, Council of State) objectively determine on the basis of that sentence that it is something fundamentally different from what the rejected bidder had? If not, reconsider the irregularity.
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 →