If you contest the irregularity finding instead of fixing it, you can't later claim unequal treatment
The Council of State rejects Sportinfrabouw's appeal: it had the same opportunity to regularise as Lesuco but chose to contest the finding of irregularity instead of adjusting its offer — and therefore cannot invoke discrimination.
What happened?
The city of Sint-Truiden launched a simplified negotiated procedure with publication for a synthetic football field in Zepperen. Four offers; two deviated from the technical specifications. Sportinfrabouw offered a turf with 8,189 tufts/m² where 10,000 were required (a deviation over 10%), arguing that 'number of tufts is an identification aspect, not a quality aspect' because its higher dtex value compensated. Lesuco offered a cork infill of 120 kg/m³ instead of the required 170-190 kg/m³. Both were invited to regularise. Lesuco adjusted its offer and had new FIFA tests performed on 13 May 2024. Sportinfrabouw instead contested the finding itself, arguing that it did comply. After an initial award to Lesuco was withdrawn for lack of an updated FIFA report and then reinstated once Lesuco submitted it, Sportinfrabouw challenged the award on grounds of unequal treatment: only a few days to respond versus weeks for Lesuco. The Council of State ruled that the essential difference lay in the conduct of the bidders, not in the authority's treatment. The deadline 'could you send this by Friday 3 May?' was not an absolute deadline; Sportinfrabouw could have asked for more time to adjust and retest, but did not even try.
Why does this matter?
In a simplified negotiated procedure, a contracting authority may give bidders the chance to regularise technical deviations, provided it does so for all. This judgment makes clear that if you contest the finding of irregularity instead of adjusting your offer, you have forgone the regularisation opportunity and cannot later claim discrimination because a competitor did use it.
The lesson
If the authority deems your offer irregular in a negotiated procedure, contest the finding AND simultaneously submit a regularised alternative. The two strategies are not mutually exclusive. And if the deadline feels tight, respond actively that you need more time for testing — phrases like 'could you send this by [date]' are rarely hard deadlines.
Ask yourself
If the authority declares your offer substantially irregular and your reply is limited to 'but we do comply': did you also submit a plan B with corrected specifications? If not, how will you later argue unequal treatment versus a competitor who did regularise?
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 →