Rejection of suspension application: tender rightly declared substantially irregular due to uncertainty about obtaining copyrights on comic book characters — summary note modifying scope of ground not taken into account
The Council of State rejected the suspension application by SA Blaclère Illumination Belgique against the exclusion of its tender and the award by the City of Charleroi of an urban lighting contract, because the contracting authority had rightly declared the tender substantially irregular due to uncertainty about obtaining copyrights on comic book characters from Charleroi, and because the proposed 'alternative' (speech bubbles with exclamation marks) was insufficiently concrete and amounted to a prohibited variant.
What happened?
The City of Charleroi conducted an open procedure for the rental of temporary and permanent urban lighting equipment for 2025-2029, estimated at a maximum of €929,500 excluding VAT. Blaclère proposed a 'luminous comic strip route' featuring characters from Charleroi including the Smurfs, Marsupilami, Lucky Luke, Spirou and Boule et Bill. A clarification request on 19 September 2025 asked about copyright acquisition costs. Blaclère responded that copyright acquisition steps had been 'initiated' but not completed, costs would be at its charge and included in the proposed prices, and that as an alternative it would install speech bubbles with exclamation marks instead of the comic characters. The contracting authority declared the tender substantially irregular: the original tender mentioned no copyright costs while the clarification claimed they were included (amounting to a modification), the copyright acquisition was uncertain, and the proposed alternative was insufficiently concrete and amounted to a prohibited variant. The contract was awarded to the sole remaining tenderer, NV City Lights. The Council did not take into account a 'summary note' filed on the day of the hearing that modified the scope of the ground. The sole ground was not serious.
Why does this matter?
This ruling illustrates that a tender depending on an external authorization not yet obtained — here copyrights on protected comic characters — can be excluded as substantially irregular. The uncertainty makes the tender conditional, which is incompatible with the principle that tenders must be definitive. A proposed 'alternative' is insufficient if it lacks concreteness and amounts to a prohibited variant.
The lesson
As a tenderer: do not submit a tender whose core element depends on an external authorization you have not yet obtained. Copyrights, licenses and permits must be secured before submission. If you offer an alternative scenario, make it equally concrete and detailed, with technical specifications, and verify whether the specifications allow variants. As a contracting authority: a tender depending on an uncertain external factor may legitimately be excluded as substantially irregular.
Ask yourself
As a tenderer: are all core elements of your tender definitive and executable at the time of submission? Does your response to a clarification request modify your original tender? As a contracting authority: have you verified whether all proposed elements are actually executable and whether any alternatives are sufficiently concrete for comparison?
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 →