What the tender documents functionally require is a minimum requirement — even if the word 'mandatory' or 'module' never appears
The Council of State refuses suspension: a tool that the specifications require to perform 'native' analyses against ISO 9001, 14001 and 45001 is a minimum requirement under article 76 of the placement royal decree — failing to demonstrate that functionality renders the offer substantially irregular, even if the documents never used the word 'modules'.
What happened?
Intercommunale IGRETEC tendered a € 355,500 (excl. VAT) services contract for support in obtaining ISO/IEC 27001 certification and rolling out a risk-management culture and tool. Open procedure with European publication. Four bidders responded: Ataya & Partners, Mielabelo, Collaboration Betters The World and Privacy Praxis. The award report of 28 June 2023 recommended Mielabelo, and the executive bureau awarded on 4 July. Privacy Praxis's offer was declared null under article 76, § 1, fourth paragraph, 3°, of the Royal Decree of 18 April 2017 as substantially irregular: the proposed 'unique tool' lacked the modules to 'natively' produce maturity and gap analyses against ISO/IEC 9001, 14001 and 45001. Privacy Praxis filed an extreme-urgency suspension with three arguments: (1) the specifications never mentioned that such 'modules' had to be supplied, (2) the functionality was not labelled 'minimum' or 'substantial', and (3) their tool did cover the requested functions through 27001, GDPR and risk-management modules. The Council brushed all three aside. The technical part of the specifications expressly listed as the tool's first functionality 'maturity and gap analyses natively against ISO/IEC 27001, 27005, 9001, 14001, 45001, NIST, OWASP, GDPR'. Combined with the 'au minimum' wording, the bold-typed obligations and the requirement of a detailed note proving each functionality, this is prima facie a minimum requirement under article 76. A minimum requirement does not need to be labelled 'substantial' — it suffices that the drafter intended that effect, because non-compliance affects equality, comparability of bids or proper performance. Privacy Praxis claimed its 'Smart Global Governance' platform covered 27001 and GDPR, but stayed silent on 9001, 14001 and 45001 — precisely the standards under attack. The equal-treatment plea also failed: Privacy Praxis did not show that other bidders had been queried about the same gaps before exclusion. Two other bidders offered the same 'Smart Global Governance' platform and submitted regular offers — proof that the same information was available to all. The second plea — that the specifications were unclear and therefore illegal — also failed: the documents do not require 'modules', they require one unique solution; the bidder chooses which modules. The 'analysis of offers report' was held to be an internal preparatory act, not actionable as such. The implicit non-award was held inadmissible because Privacy Praxis's offer had been excluded before the award-criteria assessment. Suspension refused. Privacy Praxis bears the costs: € 200 roll fee, € 24 contribution and € 770 procedural indemnity.
Why does this matter?
Many bidders — and contracting authorities — assume a requirement is 'minimum' or 'substantial' only if the documents use that exact label. They are wrong. Article 76 of the placement royal decree distinguishes three types of substantial irregularity, and the third — breach of minimum requirements and of requirements indicated as substantial — is read functionally by the Council of State: a clause is a minimum requirement when its drafter intended it to have that scope. Indicators: lists of what the tool 'must at minimum' do, bold passages, repeated emphasis, a required detailed note covering each functionality. For bidders this means you cannot fix things with a generic 'our tool covers everything' — you must prove each listed standard. Miss one and, in an open procedure, the contracting authority is required to declare your offer null with no margin of appreciation.
The lesson
Read the specifications functionally, not typographically. If a tool must 'natively' perform analyses against a list of standards, every item on that list is a minimum requirement. Bid and miss one? Your offer is declared null without the contracting authority being able to ask questions or allow regularisation. State per standard how your tool performs the analysis, and if you cover it through a different mechanism or equivalent standard, explain why — don't stop at the easy ones. For contracting authorities: a list of 'native' functionalities in a 'minimum' clause is strong legal scaffolding, even without the 'substantial' label.
Ask yourself
Does your specification contain a passage like 'the tool must allow... [list of standards or functionalities]'? Has the selected bidder demonstrated each item individually? If not, their offer is substantially irregular and must — in open or restricted procedures — be declared null. As a bidder: have you addressed each 'native' function individually, or are you leaning on a generic statement?
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 →