Two recent Belgian Council of State judgments clarified the consequences for tenders submitted without a European Single Procurement Document (“ESPD”), a document of self-declaration to be filed by tenderers in order to declare that they fulfil all qualitative selection requirements.

In both cases, tenderers initiated legal proceedings against the contracting authority’s decision to exclude them because the ESPD was not submitted with the tender. As this is a substantial irregularity under Belgian public procurement law (art. 76, 4, 2° of the royal decree of 18 April 2017), the proceedings were unsuccessful, as described below:

  • In a first judgment of 20 February 2018 (no. 240.748), the Belgian Council of State confirmed that a tenderer that does not submit an ESPD with its tender should be excluded. Because the contracting authority did not include an estimate of the contract value in the contract notice or specifications, the tenderer argued that it couldn’t know that it concerned a European public contract, which required an ESPD. Moreover, the ESPD was not in the list of documents to be submitted by the tenderer. Nevertheless, the Council of State ruled that, based on the estimate indicated in the administrative file, namely EUR 143,948.14 on an annual basis, the tenderer had to be aware of the possibility of contract extension for a maximum of four years. The Council of State also stated that, because the contract was published at European level, this refuted the tenderer’s argument that an ESPD might not have been required. Finally, the Council of State pointed out a clause in the specifications regarding the submission of an ESPD.  
  • In a second judgment of 30 January 2018 (no. 240.618), the Council of State confirmed that a tenderer cannot choose between, on the one hand, attaching the ESPD and, on the other hand, attaching certificates confirming that the tenderer meets the qualitative selection conditions. However, in accordance with article 73 of the Law of 17 June 2016, tenderers must submit the ESPD "at the time of submission of the tenders". Consequently, if the ESPD is not presented at the time of submission of the tender, the latter will be declared as substantially irregular, and the tenderer will not be entitled to remedy to this irregularity by submitting an ESPD at a later stage during the procurement process.

Tenderers have therefore been warned: the ESPD must be submitted at the time of submission of the offer, otherwise the tenderer will be excluded.