Below the European threshold the contracting authority MAY allow regularisation of a missing tender form — and the applicant had three days to challenge that, not until the hearing
The Council of State dismisses Brion & Charlot's extreme-urgency suspension against the award of an intensive-care interior contract to Emil Palm, confirming that in a negotiated procedure below the European threshold a contracting authority may allow a substantial irregularity (here: a missing final offer form) to be regularised — and adding a procedural lesson: those finding their competitor's price drop suspicious must request the lifting of confidentiality BEFORE the hearing, not at it.
What happened?
On 23 September 2025 the board of directors of Centre Hospitalier Bois de l'Abbaye (CHBA, Seraing) decided to procure the fit-out of a new dialysis department on the second floor, in four lots. Total estimate: 503,015.50 EUR ex VAT; lot 3 (interior fit-out) estimated at 237,464 EUR ex VAT. Below European threshold — CHBA chose the negotiated procedure with prior publication (article 41, §1, 2° of the 17 June 2016 Public Procurement Act). Sole award criterion: price. At opening on 31 October 2025 two bidders tendered for lot 3: Brion & Charlot (255,820.20 EUR VAT incl.) and Emil Palm (273,818.04 EUR VAT incl.) — Brion & Charlot 18,000 EUR cheaper. After individual negotiations on 26-27 January 2026, CHBA invited final offers by 6 February 10:00 'on pain of nullity'. Brion & Charlot held its price; Emil Palm dropped to 251,648.87 EUR — almost 22,000 EUR less (-8%), reversing the ranking. But Emil Palm had failed to attach the FINAL OFFER FORM with its final tender; only the inventory. On the same day (6 February) CHBA wrote to Emil Palm: 'This constitutes a substantial irregularity which I expressly ask you to repair under article 76, §5 of the 18 April 2017 Royal Decree. File the form by 10 February 15:00. Note: this is not an opportunity to improve your offer — the amount must be identical to the total of the inventory already filed.' On 26 February 2026 the board awarded lot 3 to Emil Palm for 251,648.87 EUR. Brion & Charlot filed an extreme-urgency suspension on 25 March, raising three pleas: (1) no motivation for the choice of negotiated procedure, (2) breach of article 76, §1 RD 18/04/2017 (missing form is fatal irregularity, §5 cannot heal it), (3) breach of article 41, §4 Act 17/06/2016 (no information to bidders on changes to technical specifications — evidence of 'sham negotiations'). The Council (6th Chamber, président f.f. Xavier Close) rejected each plea. FIRST: the 23 September deliberation states the amounts and links them explicitly to article 41, §1, 2°; reading the amounts makes the procedural choice intelligible. SECOND: article 76, §5 RD 18/04/2017 expressly grants discretion below the European threshold AND in negotiated procedure to either reject or allow regularisation; Brion & Charlot's 'otherwise the substantial requirement would mean nothing' argument denies the very normative scope of §5 without criticising the concrete exercise of that discretion. THIRD: article 41, §4 provides a FACULTY, not an obligation, to modify technical specifications during negotiation; the mere fact that none were modified does not prove 'détournement'. But then comes the procedural sting. CHBA had filed initial and final offers and negotiation reports as confidential. At the hearing on 9 April Brion & Charlot asked for the lifting of confidentiality 'to possibly formulate a new plea on equal treatment' given Emil Palm's suspicious price drop. The Council refused: 'The administrative dossier was validated by the registry on 7 April at 9:20. The applicant had three days before the hearing to read the dossier, formulate any new plea AND announce its request to lift confidentiality. It gives no explanation for waiting until the hearing. Reopening the debates would unduly prejudice the other party's right to a non-indefinite delay of its award.' Material distinction within confidentiality though: offers (pieces A, B, E, F) contain unambiguous prices under trade secret — confidentiality maintained; but negotiation reports (pieces C, D) contain 'in very general terms' what was discussed without unit prices — no trade secret, confidentiality lifted. Suspension dismissed; Brion & Charlot ordered to pay 770 EUR procedural indemnity + 226 EUR costs.
Why does this matter?
Three distinct lessons in one ruling. FIRST: below the European threshold AND in negotiated procedure the contracting authority has genuine discretion to allow regularisation of substantial irregularities (article 76, §5 RD 18/04/2017). A missing offer form is therefore not an automatic death sentence for the winning bid. SECOND: if you challenge an award and the file shows 'suspicious signals' (such as a dramatic price drop between initial and final offer), you must request the pieces you need TO SUBSTANTIATE THOSE SIGNALS BEFORE the hearing, not at it. The extreme-urgency procedure is not a place for fishing expeditions: if you want to formulate a new plea based on confidential pieces, announce that AS SOON AS the administrative file is available (typically 2-3 days before hearing). Waiting until the hearing = dismissal for lack of diligence. THIRD: even within confidentiality, the Council draws a refined distinction between prices (trade secret) and general discussion reports (no trade secret). When arguing for lifting, target the right piece.
The lesson
Three reflexes to develop when challenging an award in a CHBA-style procurement. ONE: don't automatically assume 'substantial irregularity = exclusion'. Read article 76, §5 RD 18/04/2017: below European threshold AND in negotiated procedure the contracting authority may CHOOSE. If you want to challenge that, criticise the EXERCISE of the discretion (motivation, equality, proportionality), not the rule itself. TWO: as soon as you receive the administrative file (typically a few days before the extreme-urgency hearing), read it the same day and send a registered email to the Council, the auditor and the other party stating that (a) you wish to formulate any new pleas and (b) you request the lifting of confidentiality for specific pieces. Waiting until the hearing = end of story. THREE: when seeking to lift confidentiality, identify the type of information (prices, sales detail, margins = trade secret; general negotiation reports = no trade secret) and argue why precisely THIS piece is necessary for your right to a fair trial.
Ask yourself
Did you receive an administrative file today for an extreme-urgency case with a hearing in 3-5 days? Open it within 24 hours and ask yourself: are there signals that could ground a new plea (amount change, unequal treatment, suspicious timing)? If yes, email the Council, the auditor AND the other party today: 'I wish to develop new pleas based on X elements found in the file, and request the lifting of confidentiality of piece Y'. Waiting until the hearing = dismissal for lack of diligence.
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 →