Annulment of nursing home construction award: not the unsigned bill of quantities, but the failure to verify exclusion grounds before the award is fatal
The Council of State annuls the award of the contract for the extension of WZC Reigersvliet with new construction of day care centre 'De Kiosk' (lot 1 structural works and finishing) — not because the selected tenderer's bill of quantities was not individually signed (that plea is rejected on the basis of Article 42 §1 Royal Decree on Placement), but because the contracting authority failed to demonstrate that it verified the exclusion grounds before the award decision, while the award report expressly made the award subject to missing documents (social security, fiscal and non-bankruptcy certificates).
What happened?
VITAS launched an open procedure for the extension of a nursing home with a new day care centre in Leopoldsburg, with price as the sole award criterion. Two tenders were submitted. The award report noted that the selected tenderer's bill of quantities was not individually signed and the tender form was incomplete, but deemed this acceptable under Article 42 §1 (global signature via e-Tendering submission report suffices). The award was proposed 'subject to prior submission' of missing documents: social security certificate, fiscal certificate, non-bankruptcy certificate, and information on subcontractors and personnel. The Council rejected the first plea (unsigned bill of quantities): the digital version takes precedence and the absence of a signed paper version does not constitute a substantive irregularity. However, the second plea succeeded: the authority did not include the required certificates in the administrative file, nor did it demonstrate that exclusion grounds were verified before the award decision. The award was annulled.
Why does this matter?
This ruling clarifies two important points. First, a global e-Tendering signature suffices even if the tender documents require a signed paper printout of the bill of quantities — the digital version takes precedence. Second, an authority may not award 'subject to' missing documents relating to exclusion grounds. Verification of social security debts, fiscal debts, and bankruptcy must be effectively completed before the award decision and documented in the administrative file. An implicit declaration on honour does not exempt the authority from this verification duty.
The lesson
As authority: never award subject to missing exclusion ground documents. Retrieve all certificates via Telemarc before the award decision and include them in the file. As tenderer: if an award is made subject to missing essential documents, this is a potentially serious ground for challenge. Regarding signature requirements: the global e-Tendering submission report signature suffices in principle, even if the tender documents require a signed paper version.
Ask yourself
As authority: are all exclusion ground certificates effectively retrieved and filed before the award decision? Does the award report contain any reservations regarding documents relating to exclusion grounds? As tenderer: did I correctly sign the e-Tendering submission report? Does the competitor's award contain reservations suggesting missing verifications?
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 →