You can't 'edit out' a late offer component — if one piece arrives late, the entire offer is tainted
Intradel tried to rescue a previously-annulled award to Strabag by simply excluding the late-submitted performance note from the scoring, but the Council of State confirms that a late component poisons the whole offer — you can't reason away the contamination by ignoring the contaminated piece.
What happened?
In 2011 the Liège waste-treatment intercommunale Intradel launched a European tender for a biomethanation plant. Four consortia submitted bids by the deadline of 29 May 2012. Strabag won, but the very next day — 30 May — Strabag spontaneously emailed a 'note expresse' on operating performance, a document the specifications expressly required as part of the offer. The Council of State annulled the first award in 2017 (arrest 239.867): a late part means a late offer, and a late offer must be rejected without discretion. Intradel re-awarded the contract to Strabag in 2018 with one fix: the late note was 'excluded from the analysis' and two related scoring elements that cancelled each other were dropped. The Walloon supervisory minister annulled this maneuver in May 2018. Intradel appealed; the Council of State (27 September 2023) rejected the appeal. Excluding the late component from scoring does not cure the underlying tardiness — the offer as a whole was late and had to be rejected. Twelve years after the opening session, Intradel is back to square zero.
Why does this matter?
Lateness is a timing rule, not a content rule. You can't fix a timing rule by editing the content. For bidders: one file, one deadline, no follow-up emails — not even 'just a summary'. For procurers: if you spot a substantive irregularity, restart. Don't massage it away. Every reconstruction that gets annulled sets you back to zero, years later.
The lesson
If a bidder spontaneously sends a document after the opening session that the specifications listed as a mandatory offer component, do NOT treat it as a clarification under art. 81 §3 of the 2016 law. Treat it as proof that the original offer was incomplete at submission. Article 115 (clarification) only applies to offers ALREADY found regular — never to fix lateness.
Ask yourself
Do you receive a 'completing' document between opening and award that was listed in the specifications as 'to be attached to the offer'? Stop. Three questions: (1) Was this in the original offer? (2) Did you receive it late? (3) Was it among the documents the specs required? Three yes = reject the offer. No scoring trick rescues this.
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 →