Staples missing from the maintenance price: raising the wrong argument loses your case
The Council of State rejects a printer supplier's challenge against the declaration of irregularity of its tender for a federal framework agreement, because the tenderer argued in its application that staples were indeed included in the offer — whereas the actual issue was that their cost was not included in the maintenance price — and the correct argument was only raised at the hearing, which was too late.
What happened?
The Belgian State (FPS BOSA) launched an open procedure for a framework agreement covering the purchase, rental and maintenance of multifunction printers, divided into seven lots. The dispute concerns lot 2: MFP devices, laser or LED, colour and black/white. Four companies submitted tenders for lot 2, including Systemat Document Solutions and Ricoh Belgium. The specifications required tenderers to offer an all-inclusive maintenance contract — 'all-in formula, staples included, excluding binders and paper'. Finishing modules with stapling function were required as mandatory options for the three items in lot 2. In its tender, Systemat included an annex stating: 'The cost per page in our tender form includes the supply of the following elements: All consumables (except paper and staples).' Systemat thus explicitly excluded staples from its maintenance price — contrary to the specifications. The authority declared the tender substantively irregular under article 76 §1, paragraph 4, 3° of the Royal Decree: the cost of staples had to be included in the maintenance price per the specifications, and Systemat had expressly excluded them. The contract was awarded to Ricoh Belgium. Systemat sought suspension under extreme urgency with two grounds. But it made a critical error: in developing its first ground, Systemat argued that staples were indeed 'present' in its offer. It contended the specification did not qualify this requirement as 'minimal' or 'substantive', and that staples represented a marginal element (0.0145% of total value). The Council found the ground rested on an incorrect factual premise. The authority had not declared the tender irregular because staples were absent — but because their cost was not included in the maintenance price. Systemat was thus contesting an argument the authority never made. The ground's summary did mention 'inclusion of staples in the maintenance price', but this brief reference found no echo in the actual argumentation. The ground was therefore ineffective. At the hearing, Systemat finally raised the correct argument — that qualifying this as a substantive irregularity was unjustified — but this was a new argument that was not a matter of public order and should have been in the original application. It was rejected as late. The second ground, based on the same incorrect premise, was rejected for the same reasons.
Why does this matter?
This ruling is a textbook example of how a procedural misstep can sink a potentially defensible case. The substantive question — whether excluding staples from the maintenance price truly constitutes a substantive irregularity given a marginal amount of 0.0145% — is never assessed because the ground was based on the wrong premise. The ruling confirms two principles. First, the Council assesses a ground based on its development in the application, not its summary. A correct summary with incorrect development does not save the ground. Second, an argument raised for the first time at the hearing that is not a matter of public order is late and will not be examined.
The lesson
As a tenderer challenging an irregularity declaration: read the award decision's motivation extremely carefully and contest the argument the authority actually made, not the one you think it made. Here, Systemat confused 'absence of staples from the offer' with 'non-inclusion of staple costs in the maintenance price' — a subtle but crucial difference. Formulate all relevant arguments in the application itself; anything raised for the first time at the hearing without being a matter of public order will be rejected as late. As a contracting authority: a clear and precise motivation — expressly citing the specification clause and the contradictory passage in the tender — makes it harder for the tenderer to miss the actual point of dispute.
Ask yourself
As a tenderer: are you contesting the right argument — the one the authority actually used as the basis for the irregularity — or are you refuting an argument that was never made? Are all your relevant grievances fully developed in your application, or are you saving arguments for the hearing?
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 →