'Will have to comply with the tender requirements' is not a compliant bid — it's a future promise, and that means substantial irregularity
The Council of State suspends in extreme urgency the Régie des Bâtiments' award of a framework contract for detention-house containers to the ALHO/Hendrickx/C2O consortium because the winning bid said nothing concrete about the mandatory 'water management' minimum requirement — the award decision itself acknowledged that ALHO 'will have to comply with the tender requirements', and the move to recast that requirement as a 'special performance condition' did not persuade.
What happened?
The Régie des Bâtiments ran a negotiated procedure with publication for a Design & Build framework contract for modular containers for detention houses — up to 1,100 places (600 reserved for Justice, 500 for Defence/Fedasil/other federal clients), totalling up to 62,000 m² of container modules. Award criteria: price (70%) and quality (30%). Under 'quality' sat a sub-criterion 'Environmental quality', and under that 'Water management'. The technical specifications (point C.1.3.4.5.3) used emphatic language — interventions 'one is in any case obliged to use', water installations that must achieve 'at least performance level 2' — and an explicit 'list of technical documents to be added to the bid' that demanded a 2-page descriptive note covering hydro-saving classes of sanitary fixtures, vectors connected to recovered water, and metering/reporting. On 19 September 2023, the contract went to the ALHO/Hendrickx/C2O consortium. The losing consortium (Denys/Jan Snel/Abscis/VK Engineering) filed an extreme-urgency suspension. Their core argument: the award decision itself stated that ALHO mentioned 'no class' and 'no information' for each of the three water-management sub-sub-criteria, and that ALHO 'will have to comply with the tender requirements' — yet ALHO got a zero score, which on the bid evaluation scale means 'meets the minimum requirements'. A bid that says nothing cannot meet a minimum requirement. The Régie defended itself by distinguishing 'technical specifications' (must be met at award) from 'special performance conditions' (can be checked during execution), claiming the water requirements fell into the second category. The XIIth chamber rejects this. The tender language ('mandatory', 'must', 'at least', plus a cross-reference to 'legal minimum requirements') prima facie marks these as minimum requirements under article 76 KB Procurement 2017. The award decision fails to explain why non-compliance does not trigger substantial irregularity. The defence that requirements can be cured during execution is rejected: a bid is judged on its content, and counting on later corrections grants the bidder a discriminatory (price) advantage. The argument that 'no information' meant 'no information justifying a higher score' contradicts how the losing consortium itself was assessed (they got 0.5/0.5 for 'substantial added value' — only possible if the minimum was already met). The Régie did not properly carry out its regularity examination. Suspension granted in extreme urgency.
Why does this matter?
This is a textbook illustration of the gap between 'what the bid says' and 'what the bidder generally accepts by submitting'. For bid managers: writing 'we will comply with the tender requirements' is not enough — you have to show you already do. For contracting authorities: if your award report literally says the winner gives 'no information' and 'will have to comply', you've drafted your own ground for annulment. The trick of reclassifying requirements as 'special performance conditions' fails when the tender documents put them in the 'documents to attach to the bid' list. Bonus: minimum requirements are not negotiable in negotiated procedures (art. 38 §5 of the 2016 Procurement Act).
The lesson
As a contracting authority, run your regularity check on what the bid actually says, not on what you hope the bidder will deliver. If your evaluation grid defines a zero score as 'meets minimum requirements', you can't give a zero score to a bid that says nothing. As a bidder: a BAFO that contains nothing concrete on a mandatory technical heading is not a bid — it is a statement of intent. Fill in the requested notes, even if it's only two pages, otherwise your low price is worth nothing. As a competitor: scan every award decision for phrases like 'will have to comply with' — that's often the signal that the authority itself is admitting the winning bid doesn't actually demonstrate something.
Ask yourself
My award decision gives a zero score to a bid for a minimum-requirement section: can I point to the specific document or note in that bid that demonstrates compliance with the minimum? Or does it say somewhere 'will have to comply with'?
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 →