Suspension application rejected: tender rightly declared substantially irregular for lack of execution schedule – certificate of compliance with execution period is not a schedule and in an open procedure an essential tender element cannot be supplemented after submission
The Council of State rejected the application for suspension under extreme urgency by SA Delta Thermic against the Brussels Hospital Association – CHU Saint-Pierre concerning the award of HVAC and electrical renovation works to SA Thersa, after finding the single ground not serious: the contracting authority had rightly declared the tender substantially irregular for lacking an execution schedule — Delta Thermic's 'certificate' stating compliance with the 340-day period was not a schedule detailing work phases, and the detailed schedule submitted after inquiry could not be accepted in an open procedure as supplementation of an essential tender element.
What happened?
The Brussels Hospital Association – CHU Saint-Pierre tendered through an open procedure for HVAC and electrical renovation works at the Porte de Hal site, including a four-year maintenance contract. The specifications required tenderers to submit an execution schedule respecting the 340 calendar-day period and a winter works prohibition. Delta Thermic submitted not a detailed schedule but a certificate attesting compliance. After inquiry, it submitted a detailed work programme for the first time. The contracting authority declared the tender substantially irregular: the certificate was not a schedule; the post-submission document confirmed the original tender lacked a required element; and in an open procedure, essential elements cannot be supplemented after deadline (article 66, §3). Delta Thermic raised one ground with three branches: (1) inadequate formal motivation for lack of reference to article 76; (2) inadequate material motivation as the certificate served the same functional purpose; (3) disproportionate sanction given the specifications also required a schedule at works commencement. The Council rejected all branches. The certificate merely repeated an engagement already implicit in tender submission. The post-inquiry schedule was a new document with different content. The works-commencement schedule served a different purpose. Once a substantial irregularity is established, the authority has no discretion — the tender must be excluded without proportionality assessment. The application was rejected with costs to Delta Thermic.
Why does this matter?
This ruling clarifies the distinction between a mere certificate of compliance and an actual execution schedule. A certificate adds nothing to the engagement already flowing from tender submission. A schedule details concrete phases enabling feasibility verification. In an open procedure, an essential tender element cannot be supplemented after deadline. The fact that specifications also require a schedule at works commencement is irrelevant — both serve different purposes. Once substantial irregularity is established, no proportionality assessment is required.
The lesson
As a tenderer: when specifications require an execution schedule, a mere certificate of compliance is insufficient — provide a detailed work programme with concrete phases. In open procedures, missing essential documents cannot be supplemented after submission. As a contracting authority: the absence of a required schedule can be a substantial irregularity when needed to verify feasibility. A formal reference to article 76 is not strictly required but the substantial qualification must appear in the reasoning.
Ask yourself
As a tenderer: have you submitted all required documents? Is your 'schedule' a detailed programme or merely a declaration? As a contracting authority: is the distinction between the tender-phase schedule and the execution-phase schedule clear in your specifications? Have you motivated the irregularity qualification?
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 →