Tenderer rightly excluded for refusing to price a mandatory item based on own legal interpretation
A tenderer that fails to provide a price for a mandatory tender item because it considers the required service unlawful will have its offer declared substantially irregular — it is not for the tenderer to unilaterally decide which items to price.
What happened?
The SPW launches a public contract for medical control services for staff of the Walloon public services. The specifications include four posts, including medical expertise on whether an absence results from harassment or violence at work. Certimed, the market leader in medical control, provides no price for that post. In its offer and on the forum, it argues that the service violates medical secrecy. The SPW declares the offer substantially irregular due to the missing price for a mandatory post. Certimed seeks suspension under extreme urgency. The Council of State rejects: the single ground rests on two unproven premises.
Why does this matter?
This judgment illustrates a fundamental principle: a tenderer may not selectively complete tender items based on its own legal assessment. Anyone who disagrees with a specification must challenge it before submitting their offer, not by leaving the item blank. The judgment also shows how the Council of State reads tender documents contextually: the specifications expressly distinguished between the medical controller's mission and the expertise, and the forum responses confirmed that the expertise need not be performed by the medical controller.
The lesson
A tenderer who considers a mandatory item unlawful must challenge the specifications — not unilaterally refuse to price the item. An offer without a price for a mandatory post is substantially irregular (Art. 76 §1 Royal Decree 2017). The contracting authority may not regularise the offer by asking the tenderer to complete it, as this would breach equality. Moreover, a tenderer must read the specifications as a whole: if the specifications distinguish between control and expertise and indicate that the expertise may be performed by doctors other than the medical controller, the tenderer cannot argue that the entire contract falls under the medical controller regime.
Ask yourself
Are you considering leaving a mandatory item blank because you find the required service problematic? Challenge the specifications through the appropriate channels before submitting your offer. An offer without a price for a mandatory post will be declared substantially irregular. Also read the forum responses carefully: they may clarify that the required service can be organised differently than you assume.
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 →