The Vetweyde sports complex in Opwijk: reopening negotiations after a withdrawn award requires every bidder’s consent
After TMVW withdrew its award decision for the sports complex in Opwijk during the standstill period because the weighting of the award criteria had been misapplied, it asked the three bidders whether they wished to resume negotiations; because the IBO consortium refused, TMVW disregarded the improved proposals of the other two, and the Council of State found in that, prima facie, no breach of the specifications or of the principle of equal treatment — the Juri consortium moreover had no interest in its second plea, since even without Cordeel’s contested tender it would have finished only second.
What happened?
TMVW tendered, by negotiated procedure with prior publication, the design and construction of the Vetweyde sports complex in Opwijk, published in the Bulletin of Tenders of 2 February 2011 under special specification AF-1745-10-003. The contract had two lots: lot 1 for two floodlit football pitches, a petanque area, a skateboard zone and the related infrastructure, parking and landscaping; lot 2 for a building with a stand, changing rooms, sanitary facilities, a cafeteria and an events hall with a fitness area. Although the contract also involved a full design and study assignment — preliminary design, permit file, detailed execution design, energy-performance reporting, stability and technical studies, an as-built file and safety coordination — the specifications classified it as a works contract. At the opening of the tenders on 2 May 2011 there were three proposals: from the consortium around nv Juri, from nv Cordeel Zetel Temse, and from the consortium around nv International Building Organisation; for lot 2 the IBO consortium also submitted a variant alongside its base proposal. Negotiations were held with all three from May to August 2011. On 23 August 2011 they were given, by fax, a final opportunity to improve their proposal, with 26 August as the deadline. The first award report of 2 September 2011 proposed awarding both lots to the IBO consortium; the bidders were informed on 5 and 6 September and received an anonymised version of the report. During the standstill, on 12 September 2011, the unsuccessful nv Cordeel pointed out that the weighting of the award criteria had been misapplied. TMVW agreed and withdrew its award decision on 14 September 2011. By registered letter of 26 September it invited the three bidders for explanations at Stropkaai 14 in Ghent, and by faxes of 27 and 29 September it circulated a reply form. That form asked bidders to confirm, without any reservation whatsoever: are you prepared to accept the award of a single lot, and do you wish to improve your tender in substance and/or price? The Juri consortium returned the form and submitted an adjusted proposal. Cordeel also submitted an adjusted proposal and indicated it was willing to perform only one lot. The IBO consortium, by contrast, merely confirmed its earlier BAFO by registered letter of 3 October 2011 and expressly contested that negotiations could still be resumed after the withdrawal. The new award report of 24 October 2011 drew the conclusion: because not all bidders consented, negotiations were not resumed and all adjusted proposals were left out of account. Moreover, the specifications expressly provided for award per lot, with no possibility of combining them. On the recalculated scores, for lot 1 the IBO consortium came first with 61.53 points, ahead of Cordeel with 60.05 and the Juri consortium with 53.42; for lot 2 Cordeel came first with 59.99, followed by IBO’s variant with 59.28 and the Juri consortium with 56.30. That same day the chairman of the management committee, acting by delegation on grounds of urgency, awarded lot 1 to the IBO consortium and lot 2 to nv Cordeel; the management committee ratified this on 26 October. The Juri consortium was notified on 25 October 2011 and lodged an application for suspension under extreme urgency on 10 November. Since article 65/15 of the law of 24 December 1993 does not require proof of serious harm that is difficult to repair, the Council only had to examine whether the pleas were serious. The first plea — that TMVW had unilaterally decided to reopen negotiations and that competitors had no say in that — was not serious. The specifications described the course of the procedure precisely and, after the BAFO, provided for reopening only where negotiations with the preferred bidder failed to produce an agreement; the withdrawal of an award decision was not among the grounds. Nor did the reply form, which asked for confirmation without any reservation, prima facie show that TMVW had already unconditionally decided to reopen. And by taking no improved proposal into account, it treated all bidders equally. The second plea concerned lot 2: nv Cordeel is a construction company and not an architect, and met the requirement of registration with the Order of Architects with the note ‘satisfied via subcontractor’. The Council barely reached its substance: an applicant has no interest in a plea that cannot change the ranking in its favour, and the Juri consortium stood third for lot 2 — even without Cordeel it would remain second, behind IBO’s variant. That article 6 of the law of 20 February 1939 was, according to the applicants, a matter of public order did not help: they supported that claim with two academic publications, cited no case law and did not address the consequences for their interest. The Council added a point of principle about the extreme-urgency procedure, which the legislature has in principle made the only suspension procedure in public procurement: at a time when a considerable number of such applications must be decided quickly, the Council cannot be expected to research legal questions that applicants raise only rudimentarily. It further observed, for completeness, that the architect who would work as Cordeel’s subcontractor does not himself act as a contractor, and that it is doubtful whether he would be less independent in such an arrangement than the architects who, at the applicants’ side, are members of the consortium itself. Neither plea was serious. The Council admitted the interventions, dismissed the application, ordered the four applicants to pay one quarter each of the costs of the application, set at 700 euros, and the intervening parties one fifth each of the costs of the interventions, set at 625 euros.
Why does this matter?
The judgment addresses a situation that recurs after every correction: the authority withdraws its award decision because something went wrong in the evaluation, and then has to decide how far to rewind. May it merely recalculate with the tenders already on the table, or may it let the bidders bid again? The Council locates the answer in the specifications themselves. TMVW had described the course of its negotiated procedure in detail — question round, presentations, BAFO, then further negotiation with the preferred bidder and reopening only if that fails to produce an agreement — and it is bound to that framework by the patere legem principle. An error in the weighting of the award criteria does not belong there: you correct that by recalculating, not by holding a new bidding round. The practical lesson is sharp. A bidder who spontaneously submits an improved proposal after a withdrawal can no longer influence the ranking with it, and cannot complain afterwards that it was not taken into account — as long as nobody’s is. The flexibility of the negotiated procedure is real, but it is bounded by the legal framework, by the principle of equal treatment and by the specifications the authority itself wrote. The second strand matters just as much. The judgment shows inexorably that a plea which cannot tip the ranking in your favour gets you nowhere: the Juri consortium stood third, and the fall of the first-placed tender would only make it second. Anyone challenging an award under extreme urgency must therefore do the arithmetic first. And the remark about rudimentarily argued legal questions keeps its value: in accelerated procurement litigation the Council will not redo your homework.
The lesson
If you are a contracting authority and you withdraw an award decision because of an evaluation error, first reread your own specifications: they determine whether you may only recalculate or may also negotiate again. If they provide for reopening only when negotiations with the preferred bidder fail, then an arithmetic error in the weighting is not a valid reason to let everyone bid again. If you do wish to consult the bidders, do so without reservation, identically for everyone, and make clear in advance what happens if not everyone agrees — then act on it consistently, as TMVW did by disregarding every improved proposal. As a bidder, do not assume that an invitation to provide explanations is automatically a new bidding round; send in your improved proposal if you wish, but do not build your strategy on it. And before lodging an extreme-urgency application, do the arithmetic: can the plea you are raising actually bring you to first place? If you stand third and your plea only touches the first, you have no interest in it. If you argue that a provision is a matter of public order, support that with case law and explain what it means for your interest — two references to academic writing are not enough.
Ask yourself
Do your specifications state precisely when negotiations may be reopened after the BAFO, and do you abide by that when you have to withdraw an award decision? Do you consult all bidders in the same way and on the same terms, and have you set out what happens in the absence of unanimity? Do you treat the improved proposals consistently — all of them or none? As a bidder: can the plea you raise really tip the ranking in your favour, or would you still trail the runner-up even if you win? Have you supported your claim that a provision is of public order with case law, and translated it into your interest in the plea? And do you know that costs in these proceedings are real: here 700 euros for the four applicants and 625 euros for the five intervening companies?
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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 →