When the majority of tenders fail on the same requirement, the problem is the specification — not the tenderers
The Council of State suspends the irregularity declaration of a tender in a Design & Build procedure for the National Lottery's new headquarters (Brouck'R project), because the ISO 27002 requirement caused confusion among multiple tenderers and the mandatory 9-month execution deadline conflicted with the construction schedule the contracting authority itself had provided.
What happened?
The Belgian National Lottery tendered a framework agreement for the design and execution of office fit-out works, change management and relocation to its new headquarters in the Brouck'R project in Brussels — approximately 11,000 m². The procedure was a competitive procedure with negotiation, published at European level. The National Lottery declared the tenderer's offer substantially irregular on two grounds: (1) failure to describe ISO 27002 physical security measures, and (2) non-compliance with the 9-month maximum execution deadline. On ISO 27002: the specifications required a detailed description of physical security measures aligned with ISO 27002. However, the specifications themselves — in an adjacent minimum requirement and in Annex M — already described detailed security measures per zone. The distinction between the two requirements was unclear. Multiple tenderers, including those whose offers were found regular, interpreted the requirement differently. Some described their own internal information security practices rather than the physical security measures for the building. The exclusion ground lacked factual basis. On the execution deadline: the specifications required all components (fit-out, change management, project management, relocation) to be completed within 9 months. However, Annex I — referenced for this deadline — contained no 9-month term and was explicitly 'purely indicative'. Moreover, Annex X (construction schedule) showed the contractor would still be working on building J through September 2026. The majority of first offers were declared irregular on this same ground — indicating the requirement was not transparent. The suspension was granted.
Why does this matter?
This ruling illustrates two key principles. First, when the majority of tenders fail on the same ground, the problem likely lies in the specifications, not in the tenders. Second, a contracting authority cannot impose a strict execution deadline as a minimum requirement while its own documents — indicative timelines, third-party construction schedules — undermine the feasibility of that deadline.
The lesson
For contracting authorities: avoid overlapping minimum requirements covering the same subject matter without clear delineation. If you impose an execution deadline as a minimum requirement, ensure your own documents don't contradict its feasibility. For tenderers: if a specification requirement is ambiguous, raise questions during the Q&A phase. If you're excluded: check whether other tenderers were excluded on the same ground — that strengthens the argument that the specifications lacked transparency.
Ask yourself
Does your specification contain overlapping minimum requirements covering similar subject matter? Does your mandatory execution deadline conflict with construction schedules or indicative timelines in your own annexes? If the majority of tenders are irregular on the same ground — is the problem the tenderers, or the specification?
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 →