Ixelles welfare centre let MDD Pharma ‘clarify’ its bid but simply set Multipharma aside: award of the pharmacy service for its care homes annulled
The Council of State annuls the award by the public social welfare centre (CPAS) of Ixelles of pharmaceutical services and individual medication preparation for its care homes to Pharma Force, because the CPAS automatically excluded Multipharma’s bid for containing a prohibited variant without considering whether regularisation was possible — while allowing another bidder, MDD Pharma, to cure a departure from a minimum requirement through a ‘clarification’.
What happened?
The CPAS of Ixelles tendered a contract for ‘Services et produits pharmaceutiques comprenant la préparation de médication individuelle (PMI)’ for the residents of its care homes. These were social and other specific services within the meaning of article 88 of the Law of 17 June 2016, procured through a negotiated procedure without prior publication. Point I.12 of the specifications prohibited free variants. A first award decision of 24 September 2025 was challenged by Multipharma and then withdrawn by the CPAS, because a new analysis of the bids was needed. By a decision of 17 December 2025, notified on 12 February 2026, the CPAS excluded Multipharma’s bid as substantially irregular and awarded the contract to Pharma Force SA. The reason: in its ‘note spécifique’ for the first award criterion, Multipharma presented its TotalMed service (with medication preparation of up to 92%), and invited the CPAS to choose between ‘complete management’ and ‘shared management’ of medical prescriptions — a choice that also affected the discount for residents. According to the CPAS, this amounted to a bid plus a prohibited variant, and thus to two bids, in breach of article 54 of the Royal Decree of 18 April 2017 and article 56 of the Law. Multipharma admitted that its bid was irregular on that point, but disputed that the CPAS was bound to exclude it outright. By judgment no. 266.413 of 20 April 2026 the Council suspended the decision. Neither the CPAS nor Pharma Force then requested continuation of the proceedings within thirty days; first auditor Constantin Nikis asked for article 11/2 of the rules of procedure to be applied and nobody asked to be heard. The Council first rejected the plea of inadmissibility: had Multipharma been allowed to regularise, its bid could have been compared with the others, and the ranking the CPAS relied on came from the withdrawn first decision that Multipharma had challenged. On the merits, the Council adopted the analysis of the suspension judgment. Article 76 of the Royal Decree of 18 April 2017 is not among the provisions that article 4, § 2 of that decree makes applicable to this negotiated procedure, and the specifications had not made it applicable either. The CPAS therefore had full discretion over the consequences of the prohibited variant, and it was obliged to exercise that discretion: to consider the possibility of regularisation and to show in its decision why it opted for a particular solution. Saying that the irregularity could confer ‘a competitive advantage’ and breached the single-bid principle did not explain why regularisation was ruled out. That weighed all the more because MDD Pharma, which had offered daily delivery whereas the specifications set as a minimum requirement delivery ‘once or twice a week’, was allowed through an undated ‘request for clarification’ to adjust its bid to weekly or twice-weekly delivery ‘on the same terms’. In the Council’s view this was in reality a regularisation, which moreover changed the substance of the bid. The argument that Multipharma could not, after the deadline, choose which version to keep did not appear in the decision and counted as ex post reasoning. The Council annulled the award decision of 17 December 2025. The CPAS bears the roll fee of 200 euros, the contribution of 26 euros and the procedural indemnity of 770 euros.
Why does this matter?
The judgment touches on a point that contracting authorities often overlook for social and other specific services: the strict regime of article 76 of the Royal Decree of 18 April 2017 — with its mandatory nullity of substantially irregular bids — does not automatically apply in a negotiated procedure without prior publication under article 89. If the specifications do not make it applicable, the authority has broad discretion. That discretion is no free pass, however: the authority must actually exercise it, consider the option of regularisation and give reasons for its choice. An authority that behaves as though it were bound to exclude is not exercising its power. The judgment is also a sharp lesson in equal treatment. The CPAS called MDD Pharma’s adjustment a ‘clarification’, but the Council looked at the substance: a bid that fails a minimum requirement and is then adjusted has been regularised. An authority that gives one bidder that chance must explain why another does not get it. Finally, the case confirms that a defending party that does not request continuation after a suspension judgment invites annulment through the expedited procedure.
The lesson
Authorities procuring social and other specific services through a negotiated procedure without publication should make a deliberate choice in their specifications: declare article 76 of the Royal Decree of 18 April 2017 applicable if you want a strict regularisation regime, or accept that you have discretion which you must also use and explain. Never exclude an irregular bid ‘automatically’ without saying why regularisation is not possible, and do not call a regularisation a ‘clarification’: the Council looks at what actually happens. If one bidder gets the chance to put its bid right, you must offer the others the same chance or explain why their situation differs. Bidders who submitted a prohibited variant need not give up: even if they admit the irregularity, they can challenge automatic exclusion where the article 76 regime does not apply — especially if a competitor was allowed to adjust.
Ask yourself
As an authority: have you checked which provisions of the Royal Decree of 18 April 2017 apply to your procedure, and have you expressly declared article 76 applicable if you want it to be? Does your decision show that you considered the possibility of regularisation, and why you decided for or against it? Do you treat similar irregularities in different bids in the same way, and do you call a regularisation by its name? Are all your reasons in the decision itself, and not only in your brief to the Council of State? As a bidder: do you know whether the article 76 regime applies to the procedure, and have you checked whether a competitor was given the chance to adjust its bid?
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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 →