Redeveloping a €16.5M square at zero public cost: if you don't include everything in the financial plan, you're out
The Council of State rejects a developer's challenge against the declaration of irregularity of its tender for a major public square redevelopment, finding that omitting certain facilities from the financial plan — while including them in descriptive notes — constitutes a substantive irregularity that prevents comparison with other tenders, and the contracting authority was not obliged to allow regularisation.
What happened?
The municipality of Chaudfontaine launched a major works contract for the redevelopment of the Place de la Bouxhe: design and construction of a square, park, public parking, housing, shops and hospitality, with an estimated value of €16.5 million excluding VAT. The project had to have zero impact on the municipal budget — the contractor would pre-finance everything and recoup its investment through the sale of housing and commercial units. The procedure was a competitive procedure with negotiation. Five candidates were selected and submitted tenders. After analysing initial offers, the municipal council declared three tenders irregular, including that of Cœur de Ville. Two tenderers — Moury Promotion and Uhoda — were invited to the negotiation phase. The core problem with Cœur de Ville: in its descriptive notes for the award criteria (heritage valorisation, materials and street furniture), the company described facilities — artistic intervention on the water tower, water features, playgrounds, a street workout area, petanque court, allotments, a beer garden and a kiosk — that it then expressly excluded from its financial plan. The financial plan note literally stated these elements were 'not included in the base offer'. The municipality qualified this as a substantive irregularity: it prevented fair comparison of tenders (other tenderers included all facilities in their financial plans), gave Cœur de Ville an unfair competitive advantage (it could 'show' more facilities in descriptive notes without bearing the financial burden), and made its commitment to execute the contract without cost to the municipality uncertain. Cœur de Ville argued the municipality could simply have excluded the non-included elements from its assessment. The Council rejected this: such a comparison would be complex and fundamentally incomplete, as elements forming part of the contract's subject matter would then not be assessed for any tenderer. The responsibility to submit a complete and coherent dossier lies with the tenderer. Cœur de Ville also argued the municipality should have allowed regularisation under article 76 §4 of the Royal Decree of 18 April 2017. In competitive procedures with negotiation above the European threshold, contracting authorities may provide in tender documents that substantive irregularities in non-final offers can be regularised. Chaudfontaine's specifications did contain such a clause, but it was formulated as a possibility ('reserves the right'), not an obligation. The Council confirmed this is not a bound competence: the authority may refuse regularisation, especially when the irregularity concerns a core element of the contract — here: pre-financing the entire project at zero cost to the municipality. The Council also rejected two new grounds concerning Uhoda's tender (unauthorised signatory, refuted by the company's articles of association and the permanent representative system) and Moury's tender (galvanised steel bicycle racks instead of stainless steel, correctly qualified as a non-substantive irregularity given the negligible weight of 13 bicycle racks in a €16.5 million project).
Why does this matter?
This ruling illustrates three important principles for complex pre-financed contracts. First, when specifications require the contractor to finance the entire project at zero cost to the authority, the financial plan is not just an annex — it is the core of the commitment. Elements described in qualitative notes but missing from the financial plan create fundamental uncertainty about execution. Second, in competitive procedures with negotiation above the European threshold, regularisation of substantive irregularities in non-final offers is possible but not mandatory — even when the specifications contain a regularisation clause formulated as a possibility. The authority retains discretion. Third, the proportionality test for irregularities works both ways: 13 galvanised steel bicycle racks instead of stainless steel in a €16.5 million project is a non-substantive irregularity; an incomplete financial plan that undermines the core commitment of budget neutrality is not.
The lesson
As a tenderer for complex pre-financed contracts: ensure every element described in your qualitative notes is also included in your financial plan. It is tempting to 'showcase' additional facilities in descriptive notes without backing them financially — but this creates exactly the discrepancy that leads to exclusion. If the specifications require the project to be budget-neutral for the authority, your financial plan is the litmus test: everything you promise must be in it. Do not count on being able to regularise a substantive irregularity during the negotiation phase, even if the specifications provide for that possibility in principle. A 'reserves the right' clause is not a guarantee. As a contracting authority: deliberately formulate your regularisation clause as a possibility, not an obligation. Treat all tenderers equally — if you refuse regularisation for one, refuse it for all.
Ask yourself
As a tenderer: have you verified that every element in your descriptive notes for the award criteria is also included in your financial plan? Does your overall offer match the core requirement — here: full pre-financing at zero cost to the authority? As a contracting authority: have you formulated your regularisation clause as a possibility, and have you treated all tenderers equally when refusing regularisation?
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 →