Demolition of 192 apartments: rejection – planning exceeding 'mandatory' 180-calendar-day deadline constitutes a substantive irregularity even without express 'on pain of nullity' clause
The Council of State rejects the suspension request against Toit & Moi's decision to disqualify Jean Nonet's tender for the demolition of 192 apartments in Jemappes (Mons) as substantively irregular, because the forecast planning (4 September 2023 to 4 April 2024) clearly exceeded the mandatory maximum deadline of 180 calendar days, without this requirement needing to be expressly labelled 'substantive' or 'on pain of nullity' to constitute a minimum requirement under article 76(1)(3) of the Royal Decree of 18 April 2017.
What happened?
Toit & Moi launched an open procedure for environmentally responsible demolition of 192 apartments in Jemappes. The tender specified three award criteria: price (40 points), methodology (40 points, minimum 20), and material buyback (20 points). The specifications prescribed a 'maximum of 180 calendar days' which was 'mandatory' (de rigueur). Jean Nonet's tender contained a planning running from 4 September 2023 to 4 April 2024 — well beyond 180 calendar days — with an execution phase of 154 days expressed in working days. The contracting authority declared the offer substantively irregular. The Council held that: (1) 'maximum' and 'mandatory' suffice to characterize a minimum requirement; (2) the deadline exceedance affects offer comparability (weekend labour costs); (3) article 66(3) clarification is discretionary, not a right. Sole ground not serious, request rejected.
Why does this matter?
This ruling clarifies three points: a requirement need not be expressly labelled 'substantive' to be a minimum requirement; a longer planning may create a discriminatory advantage even if penalised on the criterion score; and the power to request clarification (art. 66(3)) is discretionary, not an obligation.
The lesson
As a tenderer: strictly respect execution deadlines, even without 'on pain of nullity' clauses. Watch the distinction between working days and calendar days. As a contracting authority: use unambiguous terms ('maximum', 'mandatory') for essential deadlines.
Ask yourself
As a tenderer: does my planning respect the maximum deadline? Have I correctly converted working days to calendar days? As a contracting authority: is my execution deadline unambiguously formulated as an essential requirement?
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 →