Punishing a water thief is fine — but not as a ground to withdraw an earlier award decision
The Council of State suspended both the award to SACE and the withdrawal of the earlier award to Marcel Theis, because the Commune de Gouvy tried to undo the original award based on a water theft only discovered afterwards — breaching the retrait doctrine.
What happened?
In late 2014 the commune de Gouvy launched a public service contract for the brushing of street gutters and verges — a negotiated procedure without publication. Two bidders: SPRL Marcel Theis and NV SACE. On 17 February 2015 the commune decided to award the contract to Theis, the cheapest. Two days later, on 19 February, the commune's water official mailed the executive committee: he had caught a Theis truck drawing water from a fire hydrant — a practice that had supposedly been going on for months and had caused consumption spikes. The mayor and the water official filed a police complaint. On 10 March 2015 the board withdrew its award decision of 17 February. On 13 March the procurement service drafted a new evaluation report: the illegal water drawing constitutes 'serious professional misconduct' (faute professionnelle grave), so Theis fails qualitative selection. On 17 March 2015 the commune excluded Theis from selection and awarded to SACE. Theis filed for extreme urgency against the SACE award — and only at the 23 April hearing, after consulting the administrative file, did she learn of her original 17 February award and the 10 March withdrawal. She extended the appeal at the hearing to the withdrawal decision. The Council accepted that extension because the decisions were inseparably linked and Theis could not have known of the withdrawal earlier. The decisive legal point: the doctrine of retrait. A contracting authority that wants to revoke its own decision can only do so based on an unlawfulness existing at the moment of that decision — not on new facts surfacing afterwards. The water theft observed on 18 February cannot demonstrate the unlawfulness of the award decision of 17 February. The commune argued that article 61, §2, 4° of the RD of 15 July 2011 allows excluding a tenderer 'at any stage of the procedure' for serious professional misconduct, including after award. The Council did not follow that. An exclusion after award must take the form of a new exclusion decision relying on post-award facts — not a retrait that presupposes legal unlawfulness of the original decision. Both decisions — the withdrawal of 10 March and the new award to SACE of 17 March — were suspended.
Why does this matter?
For bid managers: if you see your award withdrawn on facts the authority only learned after the award, you stand strong. The retrait doctrine offers a concrete legal anchor. For contracting authorities: if new facts about an awardee surface after award, take the right legal route — exclusion under article 61 RD of 15 July 2011 via a new, fact-based decision — not a retrait that presupposes the original decision itself was unlawful.
The lesson
Want to undo an award after discovering new facts? Do NOT withdraw the original decision based on those new facts — take a new exclusion decision under article 61, §2 RD of 15 July 2011, explicitly motivated on the post-award facts. As a bid manager: when faced with a retrait, ask immediately — were the underlying facts known at the date of the original decision? If not, you have a serious ground.
Ask yourself
Looking at a withdrawal of an award you initially received? Plot three dates on a timeline: (1) award date, (2) date the 'incriminating fact' occurred, (3) date the authority learned of it. If (2) or (3) post-date (1), a retrait cannot be based on those facts — a new exclusion decision can, but only with explicit motivation.
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 →