MDD Pharma was allowed to 'clarify' daily delivery into weekly — Multipharma wasn't allowed to fix its 'forbidden variant'. Two weights, equal treatment thrown out
Ixelles' public welfare centre lets one bidder convert daily delivery into weekly after a 'request for clarification', but denies another bidder the chance to fix a similar irregularity — without explaining why the two situations differ.
What happened?
The Ixelles CPAS awards a contract for pharmaceutical services and individual medication preparation (PMI) for two retirement homes through a negotiated procedure without prior publication. The contract falls under 'social and other specific services' (art. 88-89 of the 2016 Act). Four bids come in: MDD Pharma, Multipharma, Pharma Force and Pharmacie Mercure. The specifications forbid free variants (art. I.12). An initial award to Pharma Force on 24 September 2025 is withdrawn after an extreme-urgency challenge by Multipharma. On 17 December 2025 the CPAS issues a new award — again to Pharma Force. Multipharma's bid is rejected as substantially irregular: in its 'specific note' on award criterion 1, Multipharma describes its TotalMed service and then offers a choice between 'full management' or 'shared management' of prescriptions, with a different impact on the rebate to residents. The CPAS sees this as a forbidden variant. The twist: in the same procedure MDD Pharma had originally proposed daily delivery while the specifications required weekly or bi-weekly delivery (minimum requirement III.4). In the initial analysis MDD Pharma was excluded for it. After withdrawal of the first award, the CPAS sends MDD Pharma a 'clarification request' asking whether it could commit to weekly or bi-weekly delivery 'on the same conditions as in the specific note'. MDD Pharma confirms, and the CPAS now finds the bid compliant. Multipharma turns to the Council of State. The CPAS argues: Multipharma's irregularity wasn't regularisable, while MDD Pharma's bid was merely 'clarified'. The Council exposes the difference. Art. 76 of the 18 April 2017 Royal Decree (rules on irregularities and regularisation) doesn't apply to this procedure — for 'social and specific services' art. 4 §2 of that Decree omits art. 76. Absent that regulatory framework, the CPAS has a 'full discretion' to decide whether regularisation is possible. But that discretion must be exercised, and the reasoning must show its exercise. Here there is no explanation of why MDD Pharma was allowed to 'clarify' and Multipharma wasn't. Changing daily into weekly delivery is a modification — not a clarification — with financial consequences for residents' rebates. MDD Pharma's and Multipharma's situations are comparable; both filed irregular bids. The CPAS breached equal treatment by offering regularisation to one and not the other. Suspension granted.
Why does this matter?
Many public purchases fall under 'social and other specific services' (art. 88 of the 2016 Act) — libraries, care centres, IT for local services, legal services. For those contracts, art. 76 of the placement Decree (the strict regularisation rules) doesn't apply. That looks like an authority's gift: more flexibility. But this judgment shows that flexibility becomes a weapon against the authority itself as soon as two similar situations are treated differently. For bid managers: if your bid is rejected for irregularity in a non-published negotiated procedure for social services, look first at what happened with the other irregular bids. A 'request for clarification' sent to a competitor is a red flag for unequal treatment. For contracting authorities: once you give one bidder a chance to cure, you must offer the same chance — or a reasoned distinction — to anyone with a comparable irregularity. And a 'clarification request' that actually changes an essential element of the bid — delivery frequency, price structure — isn't clarification, it's regularisation, with all the consequences.
The lesson
Before sending a 'clarification request' in a non-published negotiated procedure for social and specific services, check whether the clarification would substantively change the bid (delivery frequency, price, scope). If yes, it is regularisation — and you must offer the same chance to every bidder with a comparable irregularity, or explain in the award decision why the situations differ.
Ask yourself
Before sending a 'clarification request' to one bidder: can you state in one sentence why the other bidders with an irregularity won't get the same chance? If that sentence isn't in your award decision, you are probably breaching equal treatment.
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 →