An authority that attaches no health-and-safety plan to its specifications may not punish bidders for lacking one: the Lauw church council sees the award of its church restoration annulled
The church council of Sint Pieter in Lauw-Tongeren first awarded the restoration of its church to ASVD, reversed that award after a remark from the Agency for Home Affairs and declared the bid substantially irregular for lacking a price calculation attached to the health-and-safety plan — but the Council of State annulled that decision because the church council had itself failed to attach the plan to the specifications, and without that objective standard bidders can be reproached with nothing.
What happened?
In 2009 the church council of Sint Pieter in Lauw-Tongeren issued a restricted call for tenders for interior works, painting and the restoration of sculpture in the Sint-Pieterskerk, estimated at 134,140.18 euros excluding VAT. The specifications announced that a concise health-and-safety plan was attached as an annex — but the annex was missing. Six candidates applied, five submitted bids. On the advice of the design architect the church council awarded the contract to ASVD on 21 September 2009. When the file went to the Limburg Agency for Home Affairs for the restoration grant, a snag appeared: the agency noted that ASVD and two other bidders had attached no health-and-safety plan to their bids and, citing the circular of 27 December 2007, called those bids substantially irregular. The architect requested the documents after all — ASVD supplied them on 2 October 2009 — but the advice stood: award to Altritempi, the bidder that had included the separate price calculation. On 6 November 2009 the church council withdrew its first award and gave the contract to Altritempi; ASVD only learned on 18 December 2009, after its own insistence, that its bid had been found irregular. The Council of State turned the reasoning around. Article 30 of the Royal Decree of 25 January 2001 sets the obligations in a binding order: first the commissioning authority must include the health-and-safety plan as a separate part of the specifications; only then can bidders be required to attach a document on their method of execution and a separate price calculation. The Court of Cassation had already confirmed that reading in its judgment of 17 December 2009: the authority's plan is the objective standard against which the bidders' documents are tested; without it, bids cannot be objectively compared on this point. Since the church council had itself attached no plan to the specifications — as it acknowledged in its brief — it could not declare ASVD's bid substantially irregular for lacking the corresponding documents. That ASVD proved able to submit a plan afterwards, or had made no notification of a gap under article 98 of the Royal Decree of 8 January 1996, changed nothing: under the specifications the ordinary safety measures were included in the unit prices, so ASVD had no gap to report. The Council annulled the decision of 6 November 2009 in its entirety — both the declaration of irregularity and the award to Altritempi — and ordered the church council to pay 350 euros in costs.
Why does this matter?
The judgment anchors a principle still relevant daily in the construction sector: the bidder's documentation duty on health and safety stands or falls with the authority's plan obligation. An authority that fails to do its own homework — no health-and-safety plan attached to the specifications — cannot invoke the sanction of substantial irregularity against bidders who fail to supply the mirror documents. The Council thereby follows the Cassation judgment of 17 December 2009 seamlessly and cuts off the usual counter-arguments: that the bidder could have drawn up its own plan is beside the point, because without an objective standard there is nothing comparable to test; and a circular, as a non-binding guideline, cannot independently ground the sanction. The judgment also shows the risk zone in which small authorities such as church councils operate: it was the supervising grant authority that pushed the church council into changing course, but whoever sails on such advice without checking its legal basis bears the consequences itself. For practice this carries a bitter note: the correction of a supposed error created the real one.
The lesson
For authorities: check before publication that the health-and-safety plan is actually attached to the specifications as a separate, so-titled part — especially where the specifications themselves announce the annex. If the plan is missing, you not only lose the ability to reject bids without health-and-safety documents, you undermine the whole comparison. And do not follow the advice of a supervising or subsidising authority blindly: test it against the rules yourself before withdrawing an awarded contract. For bidders: if your bid is rejected for missing health-and-safety documents, first verify whether the authority met its own plan obligation — if not, you stand strong. And do not be fobbed off with a circular as the legal basis: it does not bind you.
Ask yourself
Is the health-and-safety plan attached to your specifications as a separate, so-titled part, as article 30, first paragraph of the Royal Decree of 25 January 2001 requires? When a supervising authority advises you, do you verify the legal basis yourself before withdrawing an award? As a bidder, do you know that the absence of the plan from the specifications protects you against a declaration of irregularity for missing mirror documents? And do you realise that a gap notification under article 98 is not required where the specifications fold the ordinary safety measures into the unit prices?
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 →