In a negotiated procedure you may refuse regularisation — but the file must show you considered it
The Council of State suspends the award of lot 2 of La Louvière's parks-guarding contract because the contracting authority, when finding Seris Security's offer substantially irregular for an 'abnormally low' price, failed to demonstrably weigh whether to allow regularisation under article 76, § 5, of the placement royal decree — a discretionary power that must actually be exercised.
What happened?
The city of La Louvière tendered a framework agreement for guarding its parks and playgrounds 2023-2027, in three lots. Lot 2 ('other parks and playgrounds', max € 385,000 excl. VAT over 4 years) had to be relaunched via a negotiated procedure without prior publication after a specifications error, with the estimated value below the European threshold for social and specific services (€ 750,000). Two bidders responded: Seris Security NV and Securitas NV. Both showed potentially abnormal prices for items 4, 7 and 10 (storm intervention rates). On 26 May 2023 the city requested price justifications. Seris replied on 1 June, Securitas on time. The city held that Seris had not sufficiently explained hourly rate, base proximity, productivity, vehicle depreciation and profit margin — the prices were considered abnormal and the offer declared substantially irregular and null. Securitas's prices, after a far shorter motivation ('detailed responses (hourly rate, time worked, travel costs, insurance...)'), were accepted as normal, and on 27 June 2023 lot 2 was awarded to Securitas for € 103,537.28 (incl. VAT). Seris filed an extreme-urgency appeal. The Council brushed three of four sub-pleas: the motivation need not refer to the specific consequences of article 76, § 1, third paragraph (the specifications widened the price-verification framework); the substantive critique of Seris's justifications failed (the confidential 'Clarification des prix' had not been provided to the city before the award); and the more lenient treatment of Securitas's abnormally HIGH prices is justified because for high prices the equality and competition concerns are less acute, allowing a shorter motivation and respect for trade secrets. But one ground succeeded: article 76, § 5, of the Royal Decree of 18 April 2017 grants contracting authorities in negotiated procedures below the European threshold a discretionary power to allow regularisation, including for abnormally low prices. The city did not allow regularisation, but neither the award decision nor the administrative file showed it had actually considered the option. Whether that consideration must be formally motivated in the decision itself, the Council deliberately left open — but the file must at least allow verification that the authority exercised its discretion in the interests of effective competition and equal treatment. The plea was serious; the suspension was granted, with immediate execution ordered.
Why does this matter?
Negotiated procedures (competitive procedure with negotiation, negotiated procedure with prior publication, negotiated procedure without prior publication) are often labelled 'more flexible'. Correct — but flexibility comes with a counterpart: discretionary powers must actually be exercised, not silently bypassed. Under article 76, § 5, the contracting authority may choose whether to allow regularisation of a substantially irregular offer. 'Not doing it' is a valid choice — but it must BE a choice, not an unthinking consequence of the irregularity finding. For bidders this is an extra ground: if the authority never considered regularisation, the award is vulnerable. For contracting authorities: leave a paper trail.
The lesson
In every negotiated procedure where you reject an offer as substantially irregular, add a paragraph to the award report stating: given article 76, § 5, we have decided whether or not to allow the bidder to regularise, for reason X. It does not need to be long, but without a trace in the file you are exposed. For abnormally high prices the motivation can be shorter (less equality pressure + trade secrets of the attributee); for abnormally low prices the regularisation question in negotiated procedures remains a mandatory mental step.
Ask yourself
Is your procedure a 'negotiated procedure' and are you about to declare an offer substantially irregular? Check: does my award report (or the file) explicitly weigh the regularisation option of article 76, § 5, and explain why I'm not using it? If not — add it before the award. As a bidder: were you eliminated in a negotiated procedure without a regularisation request? Check whether the decision or file traces a conscious choice.
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 →