Rejection of suspension application against exclusion of tender for medical control services: failure to submit price for mandatory expertise post is substantially irregular — medical confidentiality objection not serious
The Council of State rejected the suspension application by CERTIMED against the exclusion of its tender by the Walloon Region for a public contract for medical control and expertise services, because its sole ground — violation of medical confidentiality through the required harassment expertise — rested on two unestablished premises: the expertise was not necessarily a task for the control physician, and concerned facts already acknowledged by the employer or established by court decision.
What happened?
The Walloon Region tendered a single-attributee framework agreement for medical management, control, opinion and expertise services for its personnel. The specifications required four categories of services, including expertise to determine whether an absence resulted from moral or sexual harassment or workplace violence — specifically concerning facts already acknowledged by the authority or established by a final court decision. CERTIMED raised concerns on the Forum that this expertise would violate medical confidentiality, as a control physician may never disclose the cause of absence. The authority responded that the expertise was not a classical control physician mission and could be performed by other physicians. CERTIMED nevertheless submitted its tender without a price for the harassment expertise post, expressly stating it would not perform this service. The tender was declared substantially irregular. The Council rejected the sole ground on two bases: (1) the market documents did not require the expertise to be performed by a control physician — CERTIMED failed to explain why a physician not acting in that capacity could not perform it; (2) the expertise concerned facts already known to the employer, so no medical confidentiality violation was apparent.
Why does this matter?
This ruling clarifies that a tenderer who refuses to submit a price for a mandatory specification post on grounds of principle cannot challenge the exclusion of its tender when those objections rest on an incorrect reading of the specifications. It also confirms that a public contract may have multiple objects and that service descriptions should not be restrictively read as limited to one type of professional.
The lesson
As a tenderer: submit a price for all mandatory specification posts, even if you have principled objections. Raise your concerns through the Forum or clarification mechanism before submitting your tender. Once submitted without a price for a mandatory post, the authority cannot regularize your tender without breaching the equality principle.
Ask yourself
As a tenderer: have you submitted a price for all mandatory posts? Have you raised principled objections in time before submission? Have you read the contract description as a whole to understand which types of professionals can perform the various services?
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 →