Annulment of Verviers workplace prevention services award — successful tenderer submitted 5-page note instead of 2, without the irregularity being qualified or reasoned
The Council of State annuls the award of the 'External Prevention and Protection Service' contract of the City of Verviers to SPMT ARISTA because the contracting authority noted that the successful tenderer's offer contained a 5-page A4 methodology note instead of the 2-page maximum prescribed by the specifications, but neither qualified this irregularity as substantive or non-substantive nor reasoned its decision to treat the offer as regular.
What happened?
The City of Verviers launched a negotiated procedure without prior publication for a joint services contract for an external workplace prevention and protection service, for the city, the CPAS of Verviers, and the municipal autonomous agency Synergys. The specifications included six award criteria, the sixth being 'Methodology for psychosocial risk management' (10 points), specifying that the methodology would be assessed based on a descriptive note of maximum 2 A4 pages. Three tenderers submitted offers: SPMT ARISTA, CESI, and LIANTIS. Negotiations were conducted with CESI and SPMT ARISTA. On 23 November 2018, the award went to SPMT ARISTA (73.5 points), ahead of CESI (68.02) and LIANTIS (67.71). For the sixth criterion, ARISTA received 8/10 despite the noted 'non-compliance with the request for a maximum of 2 A4 pages (5 pages)', while CESI, which respected the limit, received 7/10 because its risk analysis method was deemed insufficiently detailed. The tender analysis report concluded that no offer was affected by any irregularity. CESI filed an annulment appeal. The Council declared inadmissible the appeal against the implicit refusal to award the contract to CESI, as in a negotiated procedure, negotiations in a configuration without ARISTA could have led to a different ranking. On the first plea, the Council recalled that when an irregularity exists, the authority must identify it, qualify it as substantive or non-substantive, state the reasons for this qualification, and draw the legal consequences under Article 76 of the Royal Decree. Here, the authority noted the page limit exceedance but drew no legal consequences: it did not qualify the irregularity and did not reason its decision to treat the offer as regular. The plea was well-founded. The award decision was annulled. The auditor had given a contrary opinion.
Why does this matter?
This ruling specifies the contracting authority's obligations when a tender deviates from the contract specifications. A factual finding of irregularity is not enough: the authority must follow a three-step process — identify the irregularity, qualify it as substantive or non-substantive under the Article 76 §1 criteria, and formally reason this qualification. The absence of qualification and reasoning violates Article 83 of the Act, Article 76 of the Royal Decree, and Articles 2 and 3 of the Formal Reasoning Act. The ruling also illustrates the risk that non-compliance with a formal limit (page count) creates unequal treatment: a tenderer exceeding the limit has more space to develop its methodology, which can influence scoring relative to compliant tenderers.
The lesson
When a tender deviates from a contract prescription, the authority cannot simply note it without drawing legal consequences. It must follow a structured process: identify the irregularity, qualify it (substantive or not), reason this qualification by checking whether the deviation gives a discriminatory advantage, causes competition distortion, prevents offer comparison, or makes the tenderer's commitment uncertain. In negotiated procedures below the European threshold, the authority may allow regularisation of a substantive irregularity (Article 76 §5), but must first qualify the irregularity and reason its decision. Complete absence of qualification is censured.
Ask yourself
As contracting authority: when I note that a tenderer does not comply with a specification requirement (page limit, format, deadline...), have I qualified this deviation as a substantive or non-substantive irregularity? Have I formally reasoned this qualification? Have I drawn the consequences under Article 76? As tenderer: if a competitor fails to comply with a formal specification requirement yet scores better, have I checked whether the authority properly qualified and reasoned its treatment of this irregularity?
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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 →