If your own cover letter states you cannot meet the specifications, a mere promise to 'comply' won't fix the irregularity
The Council of State dismisses Veolia's emergency suspension request against Ghent University, the incumbent contractor's bid for the HVAC maintenance framework being declared substantially irregular because Veolia's cover letter expressly stated that some specifications were 'not feasible' and proposed an alternative working method — defects going to the very essence of the bid that could not be cured by a mere statement of intent to comply.
What happened?
Ghent University tendered a five-year framework agreement for HVAC and sanitary installation maintenance — three components: preventive/predictive maintenance (lump sum), corrective maintenance (a fixed team of technicians per zone), and critical buildings such as data centres and cleanrooms (separate regime). Competitive procedure with negotiation, award criteria weighted 65/25/10 for price, team quality and ordering process. Veolia, the incumbent contractor, and Vinci Facilities Belgium were selected. In April 2023, both companies were invited to submit interim bids. Veolia played open cards, but in a way that would undermine its bid. On 12 April it sent a registered letter: 'we will not bid, some conditions are not feasible for our company, mainly due to the acute shortage of technically trained staff on the labour market.' Twelve days later, it bid anyway — but added a cover letter to its bid form that almost word-for-word repeated the 12 April message. Concretely: the specifications require expanding roughly 15 technicians to roughly 30, with a competency matrix dedicating specialists exclusively to preventive maintenance; according to Veolia 'impossible to realize', 'unfair to our customer'. And a proposal: 'further discussions so that the principles of the specifications are upheld'. In a later price clarification on 25 May 2023, Veolia put forward its own 'workable interpretation': lump sum + repairs in regie, with a separate dedicated team for critical buildings. Ghent University read it exactly as written. On 23 June 2023 it declared the bid substantially irregular for the proposed staffing and the alternative working method, and at the same time offered the possibility to regularize, with a precise question: confirm that you can meet all minimum requirements — in particular the team conditions in sections 2.3 and 3.1.4 — and that you waive the alternative working method of 25 May. Veolia's response on 4 July was brief: 'We can hereby inform you that we will conform to the said specifications (read: adapt ourselves to the specifications). In the meantime we have been able to find alternative solutions to address the problem with the number of people on site.' No documentation, no explanation of which solutions, no revised team composition. On 3 October 2023 the acting director of the Buildings and Facility Management division declared the bid substantially irregular and awarded the contract to Vinci. Veolia went to the Council of State in emergency proceedings. First ground: the acting director was not authorized. The Council quickly dismisses this: the delegation decision of the Board of Governors (4 June 2021, amended 9 September 2022) delegates the awarding of contracts above EUR 8,500 to the director of the relevant division, and article 2 explicitly extends the delegation to whoever is acting in that role. Veolia's argument that the delegation decision was not properly published was raised only at the hearing — too late to be serious. The second ground — legitimate expectations, duty to give reasons, due care — is the heart of the case. Veolia argues it did what the University asked and that a mere confirmation of compliance should suffice. The Council responds on two levels. First the legal foundation: article 76, §4 third paragraph of the 2017 Royal Decree on procurement provides that a bid with a substantial irregularity must be declared void unless the procurement documents provide otherwise — in which case the contracting authority must allow regularization before negotiations. Section I.16 of the Ghent specifications, on which both parties relied, provides for no regularization at all: on the contrary, it is a ground for declaring an irregularity. Strictly speaking, Veolia could never have counted on regularization, and could derive no legitimate expectation from the possibility the University had — wrongly — offered. But the Council goes further. Even if the specifications had allowed regularization, the University was right to refuse. CJEU case law makes clear that regularization must remain compatible with equal treatment and competition — which is no longer the case if the bidder is in effect allowed to submit a new bid. The defects in Veolia's bid (staffing and alternative working method) went to 'the very essence of the proposed solution'. A 'we will conform' without a concrete revision of the staffing plan amounts to a new bid, not a correction. The University's refusal to ask further questions — out of concern for equal treatment toward Vinci — cannot be held against it.
Why does this matter?
Bidders are often torn between honesty and chances of winning: 'if I cannot do this, I have to say so.' This judgment shows why that is a dangerous reflex. A cover letter or price clarification expressly stating 'we do not meet condition X' hands the contracting authority a ready-made ground for declaring substantial irregularity. And contracting authorities learn that an 'invitation to regularize' does not give the bidder carte blanche to escape with a substance-free promise — especially not when the original defects affect core requirements. For the regularization practice in negotiated procedures, this is an important boundary: regularization ≠ second chance.
The lesson
If you want to suggest your own 'alternative working method' or comment on the feasibility of specifications: do NOT do so in the bid file itself. Ask your questions before the question deadline, submit an unconditional bid that is fully compliant with the specifications, and save suggestions for later negotiation phases (if the procedure allows). What you write in the cover letter can — literally — be used against you.
Ask yourself
As bid manager: does your bid (form, cover letter, price clarification, technical note) anywhere contain phrasings like 'we cannot meet...', 'in our view condition X is not feasible', 'we propose instead...', or 'we assume that...'? Strike or rephrase. As contracting authority: in your invitation to regularize, are you only asking for a confirmation, or are you asking for concrete supporting evidence (revised competency matrix, amended org chart, subcontractor agreements, etc.)?
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 →