Rejection of suspension request for Overijse bus transport framework agreement: handwritten conditions on inventory regarding prices and capacity constitute substantial irregularity — possibility of clarification is not an obligation and no unequal treatment demonstrated
The Council of State rejected the urgent suspension request by BV B. against the substantial irregularity finding for the multilateral bus transport framework agreement of the Municipality of Overijse, finding the contracting authority stayed within its assessment margin by qualifying handwritten remarks on the inventory — conditions on prices, deviating capacity and restricted departure/arrival times — as substantial irregularity making comparison with other offers impossible.
What happened?
The Municipality of Overijse tendered a multilateral bus transport framework agreement (48 months, 3 lots). BV B. placed handwritten remarks on the inventory: a different seating capacity than required, conditions making prices dependent on practical details, and prices valid only for specific departure/arrival times deviating from specifications. The municipality declared the offer substantially irregular for incomparability. The Council found the authority stayed within its assessment margin — the conditions affected price comparability (the sole award criterion). The clarification option under Article 66(3) is not an obligation and cannot serve to regularize substantial irregularities. No unequal treatment was demonstrated. The selection and price assessment were properly documented in the annexed evaluation report, which the applicant failed to address in its arguments. All three grounds were rejected.
Why does this matter?
This ruling confirms the contracting authority's discretion in qualifying conditional price submissions as substantial irregularities, especially when price is the sole award criterion. The clarification option under Article 66(3) is not an obligation.
The lesson
Do not place handwritten conditions, reservations or deviations on the inventory. Conditional pricing or capacity deviations can be qualified as substantial irregularities making offer comparison impossible. Always address all documents forming part of the award decision in any challenge.
Ask yourself
Have you filled in the inventory strictly according to specifications without conditions or reservations? Do your capacity figures and execution times match the specifications?
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 →