Wider opening hours beat 'always by appointment' — and a ground that does not flip the ranking is dead on arrival
The Council of State rejects the emergency suspension by Sita Treatment & Recycling against the award of a bottom-ash processing contract to IMOG and rules that broad standard opening hours can rationally be deemed more flexible than 'on appointment outside narrower hours' — and that a ground without effect on the ranking fails for lack of interest.
What happened?
The intermunicipal waste association IVM tendered an open call for bottom-ash processing on 23 April 2015. The contract was awarded to IMOG on 16 June 2015. Sita filed an emergency suspension. Three grounds: (1) IMOG's price of €14 was abnormally low because the environmental dumping levy alone exceeds it — IMOG explained the levy only applies to the residual fraction after sorting, which is a small part of post 2; (2) calculation errors on transport distance (Harelbeke vs Moen) — Sita failed to quantify the point impact; (3) maximum flexibility score to IMOG despite Sita offering 'delivery by appointment'. The Council ruled that wider standard opening hours (weekdays to 19:00, Saturday 07:00-16:30) are more flexible than appointment-only delivery outside narrower hours. Moreover, even if the flexibility ground succeeded, it would only narrow Sita's gap, not put it first — no interest. The suspension was rejected; Sita ordered to pay €900 in costs.
Why does this matter?
Two recurring traps appear here. One: 'flexibility' as a criterion looks deceptively subjective, but contracting authorities may rationally value predictable broad opening hours over 'we'll come whenever you call'. What you see as maximum flexibility may be logistically harder for the buyer. Two: a ground whose success does not flip the ranking is a ground without interest. Many petitions are loaded with such grounds — they express outrage but do nothing for the actual suspension.
The lesson
Before drafting a ground, do one arithmetic exercise: assume the court fully upholds this ground and the authority re-scores — am I ranked first? If not, you are wasting time and money. For qualitative criteria like 'flexibility': interpret what the authority means from its daily operational perspective, not from your sales pitch.
Ask yourself
Suppose the Council fully upholds your main ground — would you actually move to first place, or still rank lower? If 'lower', do not close your petition on that ground — replace it with a stronger one, or stop litigating.
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 →