Annulment of award decision for Walloon Region orthophotos: term 'réservé' in flight schedule was weather reserve period not exclusion of flights — irregularity finding based on inexact motive and contracting authority should have requested clarification
The Council of State annulled the award of a digital colour orthophoto contract (0.25 m resolution, summer period) to the Association Momentanée Aerodata France/IMAO, finding that the irregularity declaration of SA HANSA LUFTBILD's offer rested on an inexact motive — the term 'réservé' in the flight schedule was a weather reserve period not an exclusion of flights, while the technical methodology note expressly stated flights would take place between 15 June and 15 September 2021 — and the contracting authority should have requested clarification under Article 66(3) of the Public Procurement Act.
What happened?
The Walloon Region tendered digital colour orthophotos (0.25 m resolution) via negotiated procedure with prior publication. Four offers were received. HANSA LUFTBILD's flight schedule showed eight acquisition blocks from mid-June to early August, with weeks from mid-August to mid-September marked 'réservé'. The contracting authority interpreted this as excluding flights during that period and declared the offer irregular for non-compliance with the execution deadline (15 September 2021). However, HANSA LUFTBILD's technical methodology note expressly stated flights would be carried out between 15 June and 15 September 2021. The Council found the 'réservé' period was conforming to specifications — it was reserve time for weather delays, not an exclusion of flights. The irregularity finding rested on an inexact motive. The contracting authority should have requested clarification under Article 66(3). The award decision was annulled.
Why does this matter?
This ruling confirms that irregularity findings must rest on exact motives. A contracting authority cannot declare an offer irregular based on a superficial reading of one document element without assessing the offer as a whole. When in doubt about an offer's meaning, the authority must request clarification.
The lesson
As contracting authority: assess offers as a whole including all annexes and technical notes. When in doubt, request clarification under Article 66(3). As tenderer: formulate your planning unambiguously and ensure consistency between schedule and methodology note.
Ask yourself
Have you assessed the offer as a whole including technical notes? Does the irregularity finding rest on an exact motive? Have you requested clarification when in doubt?
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 →