Fail to correct the same errors through three offer rounds? The authority doesn't have to give you a fourth chance
The Council of State rejects the claim by Sopra Steria and IDEMIA against their exclusion from an €80 million contract for a biometric identification system for the police, because they kept repeating the same irregularities after three offer rounds and repeated regularization requests.
What happened?
In December 2020, the federal police launched a competitive procedure with negotiation for a new automated biometric identification system (ABIS) to replace the existing fingerprint system. The framework agreement spans ten years with a maximum value of €80 million excl. VAT. Only two consortia participated: Sopra Steria/IDEMIA and Thales. Over nearly five years, three rounds of offers were submitted. Each time, Sopra/IDEMIA's offer contained technical irregularities, and each time they were asked to regularize. Their third offer still contained the same issues — including a responsibility matrix they had twice agreed to correct. The contracting authority declared their offer null for substantial irregularities and awarded the contract to Thales, who was invited to submit a BAFO. The Council of State analyzed the color-coding system in the specifications: orange (substantial), grey (important but not automatically substantial), green (evaluation only). None of the sixteen irregularities concerned orange specifications, but the Council ruled that grey or uncolored specifications can still constitute substantial irregularities under the legal definition. Six irregularities sufficed to justify the exclusion. The unequal treatment argument (Thales got a BAFO, Sopra/IDEMIA didn't) was rejected: the difference in treatment was justified by the difference in situation — one offer was regular, the other was not.
Why does this matter?
This ruling is a masterclass in how a complex multi-year negotiation procedure can go wrong. It demonstrates that the contracting authority's patience — three offer rounds, repeated regularization requests — has limits. It also clarifies how color-coding systems in tender documents work: even non-mandatory specifications can lead to substantial irregularities.
The lesson
When you receive a regularization request in a negotiated procedure: take it deadly seriously. Don't just agree in writing — verify meticulously that your next offer actually integrates all requested corrections. A table marked 'for information only' is still part of your offer. And if you make the same mistake three times, the Council of State will show little sympathy for your claim that you deserve another chance.
Ask yourself
After a regularization request: did you create a checklist of every requested correction and verify point by point that your new offer actually contains the fix? Is there anywhere in your offer a table or passage that deviates from what you previously agreed — even if marked 'indicative'?
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 →