An authority need not publish its estimate — and need not separately warn the previous contractor
The Council of State rejects the urgent suspension by a supplier who filed no bid and complained afterwards that the City of Ghent had not included its estimate in the notice and had not warned her personally about the new fruit and vegetables framework agreement.
What happened?
In October 2014 the City of Ghent launched an open tender for a four-year framework agreement for fruit and vegetables. The contract was estimated at €468,960 incl. VAT and published in the Belgian Tender Bulletin on 7 October and the EU OJ on 10 October. Bids were opened on 27 November 2014. The applicant, Kathelijn Van Landschoot, had earlier obtained a short fruit and vegetables contract (nine months, ending 18 April 2015) via a negotiated procedure without publication. For the new four-year contract she filed no bid. On 23 March 2015 she learned by phone that the contract had been awarded. On 1 April 2015 she filed an urgent suspension. First ground: the City should have stated the estimated value in the notice — its omission constituting a breach of a substantial procedural requirement. The Council held that the notice template in Annex 7 of the RD of 15 July 2011 includes a field for the estimate, but filling it is optional. It is a possibility, not a substantial requirement — omission therefore does not vitiate the award. First ground unfounded. Second ground: the City should have warned her personally because she had executed the earlier short contract. That would breach the duty of care and the principle of legitimate expectations. The Council disagreed. Article 29, §2 RD of 15 July 2011 makes only the official publications (Bulletin and OJ EU) legally valid notices, and even forbids dissemination outside those channels before the official date (to avoid certain bidders gaining a time advantage). The duty of care cannot require a contracting authority to warn historical contractors separately. It is rather the task of 'a normal, prudent and reasonable supplier seeking a new contract to ensure timely awareness of its publication'. Legitimate expectations? The applicant herself argued in her first ground that the earlier nine-month contract was 'incomparable' to the new four-year framework — undermining any expectation of being awarded. The urgent suspension was rejected.
Why does this matter?
For suppliers with an ongoing relationship with an authority: a current or recent contract grants no right to personal notification of the follow-up tender. Anyone who wants to bid must monitor the official publications themselves. For contracting authorities: this arrest confirms you need not notify 'historical' suppliers separately — doing so could even breach the equality principle. You may also estimate the value without including it in the notice — that is no substantial procedural defect.
The lesson
As a bid manager at a supplier with current contracts: set up automated monitoring of TED and the national tender bulletin for the authorities you serve. Don't expect personal notification — it is not required and in many cases not even allowed. As an authority: your estimate belongs in your internal file, not necessarily in the notice — and you need not separately notify historical contractors of new procedures.
Ask yourself
Does your firm systematically monitor TED and the national tender bulletin for every authority you have worked with in the past three years? If not, for which authorities are you missing publications? This arrest shows that 'we were not aware' is not a valid excuse in urgent suspension — monitoring is your own responsibility.
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 →