Lowest price, yet set aside: an earthworks contractor loses the land-consolidation contract on two independent grounds — the wrong accreditation class and a missing safety plan
Grondwerken De Mol Danny submitted, at 534,947.50 euros, the lowest of four offers for the land-development and landscape-care works of the Woesten Land Consolidation Committee, but its offer was set aside because it lacked the required G3 class 3 accreditation and had not attached the safety-and-health documents; the Council of State dismissed its action, because each of those two grounds sufficed on its own and it could not rebut the ground concerning the safety plan.
What happened?
The Woesten Land Consolidation Committee launched a public works contract for 'land-development and landscape-care works part 2 – B47L2 2008' by open tender, published in the Bulletin of Tenders of 28 August 2008. At the opening of the offers on 26 September 2008, the offer of Grondwerken De Mol Danny, at 534,947.50 euros (incl. VAT), proved the lowest of the four submitted. Yet the award report of 8 October 2008 proposed to set its offer aside, for two reasons. First, the bidder did not meet the required accreditation: it held a G3 class 1 accreditation, whereas G3 class 3 was required, and no application to raise the class was pending. Second, the safety documents were neither attached to the offer nor signed; their absence was regarded, by reference to the circular on temporary and mobile worksites, as a substantial irregularity leading to exclusion. The contract was to be awarded to Dewulf Gebroeders for 572,560.25 euros (incl. VAT). On 13 October 2008 the committee awarded the contract to Dewulf Gebroeders; on 3 December 2008 the Flemish minister granted a subsidy for its execution. By letters of 22 January and 9 February 2009 the committee notified the applicant of the non-award and the award report. On 23 March 2009 Grondwerken De Mol Danny sought the annulment of three objects: the non-award to itself, the award to Dewulf Gebroeders, and an award decision of the Flemish authority of 17 December 2008. The Council of State found that the Flemish Region had taken no award decision and that this third object did not exist; the action against it was inadmissible and the Flemish Region was put out of the case. On the merits, in its second plea, the applicant challenged both the accreditation requirement (which in its view breached the accreditation legislation and the principle of equality) and the finding that the safety-and-health plan was missing; it pointed out that the opening record mentioned no missing item. The Council held that the specifications required the safety documents to be attached to the tender form — a description of the safety measures, a price calculation and a declaration of intent, all to be completed and signed — and that these were absent from the original offer in the file. The fact that the opening record does not state that the offer was incomplete does not mean it was complete; the applicant had to prove that the documents were attached, and it did not. The absence of the safety-and-health plan is a valid ground for setting aside an offer, which the applicant did not dispute, and it had filed no criminal complaint for forgery. The plea was rejected. In its first plea it attacked the accreditation requirement, but the Council noted that the exclusion rested on two grounds — the lack of the required accreditation and the lack of the safety documents — each sufficient on its own; since the second ground stood, the criticism of the accreditation ground did not need to be examined further. The third and fourth pleas on the formal and substantive duty to state reasons were rejected: in an open tender it suffices, as formal reasoning, to state that the contract is awarded to the lowest regular offer, and by signing and forwarding the award report the authority had made its reasons its own. The applicant withdrew the fifth plea. The Council dismissed the action and ordered the applicant to pay the costs, set at 175 euros.
Why does this matter?
This judgment illustrates a stubborn misconception: the lowest price is no shield against exclusion. An offer that is formally or substantially irregular is set aside before the prices are even compared, and it is then irrelevant that it was the cheapest. Two classic stumbling blocks come together: the correct accreditation — here G3 class 3, not class 1 — and a fully completed and signed safety-and-health plan. Equally important is what the judgment says about proof. The bidder thought the opening record, which mentioned no missing item, proved its offer was complete. The Council reverses that reasoning: the absence of a mention proves nothing, and it is for the bidder to show that the documents were actually attached. Finally, the judgment demonstrates the strength of a plurality of grounds. Where a decision to set aside rests on two independent grounds, the bidder must knock down both; if one stands, the decision remains valid and the Council spares itself the assessment of the other. For the authority this is a practical line of defence; for the bidder, a warning not to aim at a single ground.
The lesson
If you are a bidder, check two things before submitting that have nothing to do with your price: do you hold the exact required accreditation — the right category and class — and are all the requested safety-and-health documents completed, signed and actually attached? Do not count on the opening record to declare your offer 'complete': if an item is missing, the burden of proving it was there lies on you, and that is almost impossible to discharge afterwards. If you challenge an exclusion resting on several independent grounds, rebut them all; leave one untouched and your action is lost from the start. If you are an authority, the judgment offers a foothold: build a decision to set aside on several independent grounds where you can, and in an open tender forward the award report — then you make its reasons your own and it suffices, as formal reasoning, that you award to the lowest regular offer.
Ask yourself
Does your offer hold the exact required accreditation — the right category and class — or at least a pending application to raise the class? Have you completed, signed and attached every document of the safety-and-health plan, and can you prove they were with your offer? Do you realise that an opening record mentioning no missing item does not prove your completeness? And if you challenge an exclusion resting on two independent grounds: do you rebut both, or leave one standing that keeps the decision alive anyway?
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 →