Annulment action against exclusion of interpreters' tenders for missing ESPD rejected – brief guide labelling annexes 5 and 6 as 'merely informative' does not override explicit obligation in the specifications
The Council of State rejected by summary procedure the annulment action by two interpreters against the exclusion of their tenders by the Brussels Parliament for a framework agreement for interpreting services, because they had not submitted a European Single Procurement Document (ESPD) with their tender: the obligation to submit the ESPD followed directly from the specifications and the law, and the brief guide labelling annexes 5 and 6 as 'merely informative' did not override this, leaving the contracting authority no discretion but to declare the tenders substantially irregular.
What happened?
The Brussels Parliament tendered a service contract through an open procedure with European publication for a framework agreement for interpreting services in two lots. The specifications explicitly required submission of an ESPD (point 2.3). A 'brief guide' sent to the interpreters stated that annexes 5 and 6 were 'merely informative and need not be submitted'. The applicants relied solely on this guide and submitted without the ESPD. Of 39 tenderers, 14 were excluded for missing ESPDs. The Council held that the ESPD obligation follows from Article 73 §1 of the 2016 Act and Article 38 of the 2017 Royal Decree, confirmed at multiple points in the specifications. The brief guide was not a specification document and did not override the legal obligation. Under Article 76 §1(4)(2) and §3 of the Royal Decree, the missing ESPD constituted a substantial irregularity for which the authority had no discretion — the tender had to be annulled. No regularisation was possible. The action was rejected.
Why does this matter?
This ruling confirms the strict operation of the ESPD obligation for contracts above European thresholds. The obligation flows directly from law and specifications and cannot be negated by informal guidance documents. A missing ESPD is a substantial irregularity with no discretionary margin — the tender must be annulled. The fact that many tenderers made the same error does not prove procedural irregularity.
The lesson
Never rely solely on a brief guide or summary. Always read the full specifications and verify which documents must be submitted. A missing ESPD above European thresholds is a substantial irregularity that cannot be regularised. As a contracting authority, ensure informal guidance is consistent with the specifications.
Ask yourself
As a tenderer: have you read the full specifications and submitted all required documents including the ESPD? Are you relying on the specifications themselves or on a summary? As a contracting authority: is your brief guide consistent with the specifications? Could its wording suggest that mandatory documents need not be submitted?
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 →