An EU regulation alone doesn't make a tender 'substantially irregular' — if the contract documents don't say the requirement is essential, you have to explain why it is
The Council of State suspends the award of a Walloon school-fruit contract to Fresho because the Walloon Region rejected Faway's bid as 'substantially irregular' (proposing chicory in June) without explaining in the award decision itself why seasonality was an essential requirement — a reference to the EU regulation didn't suffice, since the contract documents nowhere classified seasonality as substantial.
What happened?
In June 2023, the Walloon Government published a European tender for supplying fruit and vegetables to schools in the French and German-speaking communities for three school years under the EU 'Fruits and Vegetables in Schools' programme (Regulation 1308/2013/EU). The contract was divided into 20 lots; Faway bid for sixteen of them. On 26 September 2023, the Region awarded all twenty lots to Fresho and rejected Faway's bids for 'substantial irregularity in the delivery calendar' — Faway had proposed chicory deliveries in June, while annex 1bis (a table from the Walloon Ministerial Order of 21 September 2017) only listed chicory for winter months. The award decision merely stated 'irrégularité substantielle dans la proposition de calendrier' and cited annex 1bis. Faway argued before the Council of State that nowhere did the tender documents classify seasonality as a minimum or essential requirement, and that the authority could simply have asked it to swap two products in its calendar. The Region defended its position elaborately in its observations note, citing the EU regulation, the Walloon implementing order, and the risk that the European Commission could recover subsidies for non-compliant deliveries. The Council of State (VIth chamber) was not persuaded. Formal motivation duty requires that, when faced with a deviation from the tender documents, the contracting authority not only state the deviation but explain why it qualifies as substantial. The tender documents nowhere said that seasonality was a substantial requirement; they referred to the EU and Walloon rules generically but never said that breaching annex 1bis would render an offer null. The arguments the Region developed only in its observations note — about EU control regulation 2017/39, about subsidy recovery — were absent from the award decision. 'Explanations provided ex post in lengthy developments of the observations note cannot remedy the absence of motivation in the contested act.' The Council suspends the award to Fresho for the sixteen lots Faway had bid on.
Why does this matter?
The line between substantial and non-substantial irregularity matters: a substantial one is legally incurable and costs the bid; a non-substantial one can be regularised. This judgment puts the burden of qualifying it squarely on the contracting authority — and not somewhere in litigation, but in the award decision itself. If the requirement isn't flagged 'essential' or 'minimum' in the tender documents, you have to explain why it is. Bidders facing rejection on a requirement they couldn't have foreseen as fatal have a real shot at suspension, especially in extreme-urgency proceedings.
The lesson
If you're the contracting authority, write two things in your award decision: (1) which requirement was breached, and (2) why that requirement is essential or substantial. 'Substantial irregularity' plus a cross-reference to an annex won't do — particularly if that annex never frames the requirement as a minimum. Build the substantiality argument from the tender text itself and, if needed, from applicable regulation — and write it down. If you want to be able to enforce a requirement as substantial, say so in the tender documents up front ('minimum requirement', 'on penalty of nullity'). If you're a bidder and you see your bid rejected for 'substantial irregularity' on a requirement that the tender documents don't flag as essential — ask for motivation and consider extreme-urgency proceedings.
Ask yourself
My award decision rejects an offer for substantial irregularity: can I, in two sentences, point to the language in my tender documents that makes the breached requirement a 'minimum' or 'essential' one? If not, I'm building on sand.
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 →