Suspension request by In Continu et Services against nullity of bid for Automatic Border Control systems for Belgian federal police rejected — functional tests can validly verify compliance with essential technical requirements — absence of document reader at e-gate suffices as substantial irregularity
The Council of State rejected the urgent suspension request by In Continu et Services (Ingroupe) against the Interior Minister's decision to declare its bid null for the procurement of Automatic Border Control systems (e-gates and kiosks) for the federal police, ruling that the tender documents validly provided for functional tests to verify compliance with essential technical requirements, that the absence of a document reader at the e-gate entrance during the demonstration constituted a sufficient substantial irregularity to annul the bid, and that the grounds challenging other irregularity motives and the price verification of the winning bid (SA Zetes) were not serious.
What happened?
The Interior Minister tendered Automatic Border Control systems (e-gates and self-service kiosks) for the federal police through a competitive procedure with negotiation. The tender documents defined type E technical specifications (mandatory requirements on penalty of bid nullity) and provided for functional tests to verify compliance with essential technical requirements. Four tenderers submitted bids and were all invited to demonstrate. During In Continu's demonstration, the e-gate lacked its most crucial component: the document reader at the entrance (specification 3.4.2 type E). The Minister declared the bid null based on thirteen substantial irregularities and awarded the contract to SA Zetes. The Council rejected all grounds: functional tests were validly provided for; Articles 83/76 do not prohibit such tests; a single substantial irregularity suffices to justify rejection; the price verification of Zetes' offer was adequate; and the late-raised ground regarding clarification requests was time-barred.
Why does this matter?
This ruling clarifies that when tender documents provide for functional tests, the contracting authority may validly identify substantial irregularities based on test results, not only on the written offer content. A single substantial irregularity suffices to justify rejection. The distinction between general price verification (Article 35) and abnormally low price examination (Article 36) is clarified.
The lesson
Prepare demonstrations as rigorously as written offers — they can serve to verify compliance with essential technical requirements, not just showcase quality. The absence of a crucial component during demonstration can nullify the bid even if the written offer describes a compliant solution. As contracting authority, clearly state in tender documents that tests will verify essential technical requirements.
Ask yourself
Does the tender provide for functional tests? Does your demonstration cover all essential technical requirements including hardware components? Is your demonstrated solution identical to what is described in the written offer?
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 →