Five dismissed suspensions in a single week: what these Council of State rulings teach bid managers

Between 19 and 25 July 2024, the vacation chamber of the Belgian Council of State issued five rulings on public procurement matters. Five urgent applications, five different sectors — riverbank engineering, synthetic turf, translation services, consulting framework agreements, airport security — and five identical outcomes: dismissed.

Coincidence? Not really. Read the five rulings side by side and a pattern emerges. The error rarely sits with the contracting authority. It sits in how the applicant read the specifications, how it responded to questions, how it structured its offer. Individually they are disputes about selection criteria, regularisation, scoring methodologies, framework agreements and consortia. Together they amount to a short practical course on what bid managers consistently get wrong.

This article walks through all five and extracts the common thread.

1. A worksite near a river is not a quayside wall (ruling 260.458)

SPI, the development agency for the Province of Liège, launched a tender for rebuilding the banks of the Vesdre basin in the aftermath of the 2021 floods — specifically, a quayside wall behind the Theux fire station, including sheet piling, reinforced concrete footings, hollow masonry blocks and drainage. The technical-capacity selection criterion required at least one similar work of ≥€900,000 in the past five years.

The consortium TEGEC-R.G.-TRAGECO offered as its flagship reference a works contract beneath the Ourthe: the replacement of drinking water pipelines through horizontal boring, with vertical sinking shafts 9.5 m in diameter and 10 m deep. Their argument for similarity: same river basin, same stakeholders (Belgian forestry authority, SPW, water utility), same type of reinforced concrete, same water-management challenges.

SPI rejected the selection. The Council of State confirmed: similarity is assessed by the characteristics of the works themselves, not by the surrounding environment or organisational context. Sinking shafts outside the river bed are not the same as a structure in direct contact with the water body. That both sites are near a river, that concrete is poured, that the same partners are at the table — all prima facie irrelevant.

The lesson. When submitting a reference against a similarity criterion, stress-test it against technical core characteristics, not context. Would an independent reader, comparing the two specifications, spontaneously say “yes, these are the same type of works”? If not, the reference is weak — no matter how vivid the story around the project.

2. If you contest an irregularity instead of fixing it, you lose the equality card (ruling 260.456)

The city of Sint-Truiden launched a simplified negotiated procedure with publication for a synthetic football field in Zepperen. Four bidders, two with technical deviations from the specifications. Sportinfrabouw offered turf with 8,189 tufts/m² instead of the required 10,000 — more than 10 % off. Lesuco offered cork infill at 120 kg/m³ instead of 170-190 kg/m³.

Both were invited to regularise. Here the paths diverge. Lesuco adjusted its offer, commissioned new FIFA tests on 13 May 2024, and delivered a compliant report on 7 June. Sportinfrabouw instead contested the finding itself: its higher dtex value compensated for the lower tuft count, so “we do in fact comply”. It did not submit a revised offer, not even as a fallback.

Sint-Truiden awarded to Lesuco. Sportinfrabouw challenged the decision before the Council of State on grounds of unequal treatment: only a few days (including 1 May) to respond, while Lesuco had weeks to run new tests. The Council dismissed. The essential difference lay not in how the authority treated the bidders, but in how the bidders responded. “Could you send this information by Friday 3 May 2024?” is, on the face of it, not a hard deadline — Sportinfrabouw could have replied that it wished to adjust its offer and needed more time. Nothing suggests that would have been refused.

The lesson. If your offer deviates technically from the specifications and the authority flags it, do two things at once: contest the finding (if you mean it) AND submit a corrected variant as a subsidiary option. The two strategies are not mutually exclusive. A deadline phrased as “could you send this by …” is a question, not a cut-off. Answer it actively.

3. The methodology may surface only in the award decision — but offers with ”…” cost points either way (ruling 260.454)

In March 2024 the Brussels Region launched an open procedure for French-Dutch translation services (framework agreement in cascade). Two award criteria: methodological quality (40 points across seven sub-criteria) and price (60 points). Two valid offers: Oneliner and Production. Final score: 84.69 against 80. A 4.69 point gap.

Production challenged the award in urgent proceedings, contesting 8.5 points across six sub-criteria. Its main argument: the concrete scoring methodology — 2.5/5 as a baseline for “complete and clear” descriptions, with ± 0.5 to 2 points for added value or gaps — was disclosed only in the award decision, not in the specifications.

The Council of State confirmed a settled rule: the contracting authority does not have to disclose the evaluation methodology in advance, provided it is not arbitrary, does not distort the criteria, and is applied identically to all offers. Grievance by grievance, the application failed.

More interesting for practice are the point deductions against Production. The specifications required the translator to deliver files in the office application format AND in .tmx/txlf (Wordfast) and .sdlxliff (SDL Trados Studio). Production listed “xliff” as “output of translation assistance tools” and closed its list with three dots and the note “non-exhaustive”. Minus two points. On top of that it mentioned an external DTP designer without stating whether the intervention was included in the price — while elsewhere in its offer it explicitly stated that it did not use subcontractors. Minus half a point. And its hotline offered extended hours, but at separate tariff — not part of the base service, hence not credited against Oneliner’s free after-hours delivery.

The lesson. In quality descriptions, avoid any expression that lets an evaluator doubt: ”…”, “non-exhaustive”, “among others”, “on request at tariff”. Make your lists explicit. State unequivocally which services are free and included in the base price. And before you appeal a scoring: count. If the contested total cannot close the ranking gap, the grounds are inadmissible for lack of interest, regardless of the merits.

4. The bond clause leaks the estimate (ruling 260.452)

The municipality of Edegem launched a framework agreement for consulting studies (architecture, building services, stability, landscaping, in-house works). Bidders had to state a fee percentage per lot. For lot 2 (building services) Arcade Engineering quoted 15.13 % — the winner (BV D) quoted 9.00 %. A gap that no plan of approach could close.

Arcade went to the Council of State with two arguments. One: the total execution amount on which the percentages are applied was not disclosed anywhere — so only percentages were compared, not “real prices”. Two: the specifications label the contract as a “unit price contract”, but a percentage is not a unit price.

The Council dismissed both arguments, but the telling moment is this: Arcade contradicts itself. Within the same pleading it first argues that the estimate was not disclosed, then demonstrates that it actually is derivable. How? From the bond clause. Article 2.4 of the specifications fixed the bond at “3 % of the estimated amount, rounded up to the nearest ten”. For lot 2 the bond was €3,750 → estimate €125,000. For lot 3 it was €1,720 → €57,333.33. The Council: the authority could have stated the estimate more explicitly, but Arcade does not explain what concrete harm its absence caused. As a professional player, Arcade could do the math itself.

The lesson. Contract specifications are not siloed clauses. The bond, insurance thresholds, reference volume minimums, estimated quantities — they constantly leak information that is not stated explicitly elsewhere. Read the document as a puzzle before you start drafting. If you cannot find an order of magnitude for a fee percentage, ask during the Q&A period, not after the award.

5. Statutory authorisations cannot be “borrowed” within a consortium (ruling 260.450)

Liège Airport Security launched a European tender in March 2024 for surveillance and control services. Alliance Security (BE) and Capital Security (FR) submitted a joint application as a consortium. Alliance held the Belgian authorisation under the law of 2 October 2017 on private and special security; Capital did not. In its European Single Procurement Document, Capital described itself as “group leader and responsible for the execution of specific surveillance and supervisory tasks”.

When the authority asked for both authorisations, the consortium was candid: Capital does not hold one, but “this is not a problem” — Alliance’s authorisation is made available to the consortium, site staff will at least be contractually linked to Alliance, and doctrine allows pooling of selection capacities.

Liège Airport Security did not select the consortium. The Council of State confirmed the decision without reservation. The legal logic: article 150 al. 2 of the Public Procurement Act and article 72 § 2 of the Royal Decree for special sectors allow reliance on third-party capacity for economic/financial and technical/professional capacity. Never for “fitness to pursue the professional activity” — the statutory capacity to perform it. The authorisation under the 2 October 2017 law is precisely such a specific authorisation in the sense of article 66 of the Royal Decree for classical sectors. Each consortium member that becomes a party to the contract must hold the authorisation personally.

Two further points matter. One: the 2 October 2017 law covers not only on-site staff but also management personnel and anyone involved in the regulated activity. So saying that “site staff will be contractually linked to the authorised partner” solves nothing. Two: fresh arguments introduced at the hearing (“actually Capital will only provide financial support”) are dismissed if they contradict earlier statements in the ESPD.

The lesson. In every regulated sector — security, transport, pharmaceutical wholesale, asbestos removal, architecture, medicine — every consortium member must personally hold the legally required authorisation. Verify before submitting. If at least one member lacks the authorisation, consider a different structure: subcontracting (where regulation permits), a standalone bid, or a different partnership.

The common thread

Read these five rulings together and the same kind of thinking error recurs in different guises.

Applicants read the specifications selectively: they ignore the bond clause that undermines their position, interpret “similar works” to suit themselves, or rely on general formulas like “ancillary services included in the price”. Applicants respond defensively to questions from the authority: they contest findings of irregularity instead of regularising, complain afterwards about lack of information without having asked for clarification in the Q&A round, surface completely new factual angles only at the hearing. Applicants lean on doctrine that seems to support them (“consortia may pool capacities”, “the methodology must be announced in advance”) without checking the precise exceptions.

And in all five cases the applicant is confronted with its own documents. The ESPD, the offer, the email correspondence — every document locks in a position you have to live with. The award decision’s reasoning cites them extensively. The pleadings at the hearing can no longer rewrite them.

For anyone who wins or loses public contracts on these details, the practical takeaway is simple. Read the specifications holistically, not selectively. Respond to authority questions proactively and with several options on the table. Make sure every building block of your offer — consortium structure, format lists, references to support services — survives the scrutiny of a critical reader counting plus and minus points. And before you consider going to the Council of State: add everything up. How large is the point gap you have to close, and do your grounds carry enough weight to do it?

In five days the vacation chamber delivers a kind of master class. The price of the lessons: thirty procedural indemnities of €770 and five lost awards.

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The five rulings discussed in this article are available in our case law database: 260.458, 260.456, 260.454, 260.452 and 260.450.