Suspension of rejection of weed control tender for blank ESPD — excessive formalism in case of material error when completed ESPD had been submitted three days earlier for comparable contract with same municipality
The Council of State suspends the award decision of the Municipality of Riemst which excluded the tender of BV Groenbeheer Baart for weed control 2024-2026 due to submission of a blank ESPD, because the municipality appears to have exceeded the limits of reasonableness by rejecting the tender without further investigation while it had received a fully completed ESPD from the same tenderer three days earlier in the context of a comparable contract with identical selection criteria, and the tenderer had immediately reported the error and pointed to the previously submitted ESPD.
What happened?
The Municipality of Riemst tendered through an open procedure a services contract for 'weed control 2024-2026'. Price was the sole award criterion. The specifications required a completed European Single Procurement Document (ESPD). Five tenderers submitted, with Groenbeheer Baart offering the lowest price but accidentally attaching a blank ESPD template instead of the completed version. Just three days earlier, the same company had submitted a correctly completed ESPD for a comparable tender with the same municipality for 'mowing services 2024-2026', with identical selection criteria. Groenbeheer Baart immediately notified the municipality of the error, pointed to the earlier ESPD, and confirmed the data remained correct. The municipality rejected the tender as substantially irregular without any reference to the email or the earlier ESPD. The Council found that a blank ESPD is not equivalent to a missing ESPD. Article 73(1)(5) allows reuse of a previously submitted ESPD if the tenderer confirms the data is still correct, without requiring physical re-attachment. Here, the earlier ESPD was easily identifiable (same municipality, three days prior, comparable contract, identical criteria). The municipality exceeded the limits of reasonableness by applying strict formalism without examining the available information. Suspension was ordered.
Why does this matter?
This ruling clarifies that a blank ESPD is not automatically equivalent to a missing ESPD. When the same tenderer recently submitted an identical completed ESPD to the same authority for a comparable contract, and immediately reported the error, the authority exceeds the limits of reasonableness by rejecting without investigation. The proportionality principle requires examining the concrete circumstances rather than applying blind formalism.
The lesson
A blank ESPD is not automatically a missing ESPD. As contracting authority, always examine the specific circumstances: is there a material error? Do you already have a recent, valid completed ESPD from the same tenderer? Article 73(1)(5) allows reuse with confirmation — the document need not be physically re-attached if the earlier procedure is easily identifiable. Pay attention to tenderer communications after submission: a proactive error report deserves a careful and motivated response, not silent disregard.
Ask yourself
When I find a defective ESPD, have I checked whether the same tenderer recently submitted a valid ESPD in another procedure with me? Have I considered and addressed post-submission communications about possible errors? Am I falling into excessive formalism when the information I need is already in my possession?
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 →