A contracting authority that overrules its own jury must own the deviation — not rewrite the jury
After an initial suspension, the city of Sint-Niklaas gets a green light for a second award to the same bidder because the council may set aside its jury's advice on the second award criterion in a reasoned way — provided the new reasoning stands on its own.
What happened?
The city of Sint-Niklaas sought a new operator for the Grote Markt parking through a negotiated procedure with publication. Seven companies tendered, including APCOA (the incumbent) and BVBA Optimal Parking Control (OPC). An internal jury produced an award report on 26 August 2015 with a points ranking on three criteria: payment mechanism (50%), service and quality of operation (40%) and long-term partnership vision (10%). The council followed the jury and awarded to OPC. On 15 October 2015 the Council of State (judgment no. 232,569) suspended that first award decision because of a motivation defect on the second criterion. The council withdrew its decision and on 26 October took a new one — again awarding to OPC, but with a rewritten reasoning for criterion 2. It explicitly stepped away from the jury's advice: the council preferred a 'more global view' over the jury's sub-scores. APCOA went back to the Council of State a second time in extreme urgency, raising four pleas: unequal treatment (only OPC and five others were asked to propose a service level agreement, not APCOA), insufficient motivation across all three criteria, non-compliance of OPC's tender (no permanently staffed control room while the specifications required 'permanent supervision 24/7'), and further negotiations with OPC after the BAFO phase. The Council of State rejected all pleas. The unequal treatment about the SLA was prima facie real but irrelevant because the new motivation no longer used SLA as a scoring element. The specifications required 'permanent supervision' with a 'preference' for permanent staff presence — not a duty. And APCOA had itself used the second BAFO round, so could not attack the same option for others. Application dismissed, APCOA pays €700 in procedural costs.
Why does this matter?
After a suspension, contracting authorities often hear the advice 'just redo it'. This judgment shows how far that 'redo' can go: a council may set aside its own jury's report substantively, as long as the new decision is itself well-reasoned. For bidders this means a second extreme-urgency action does not automatically get easier. For contracting authorities it means they have the freedom to fundamentally revise their assessment — but the new reasoning must stand independently from the old report.
The lesson
If as a contracting authority you take a new decision after a suspension and want to depart from an earlier award report or advisory opinion, write a full new motivation that stands on its own. Don't simply refer to the old report where you agree with it and ignore it where you don't — explain explicitly why you choose a 'more global' or different approach. The Sint-Niklaas council did this by writing a short comparative assessment for each bidder that replaced the jury's sub-scores.
Ask yourself
When you take a second award decision after a suspension: can you explain per criterion where you follow your internal jury's advice and where not, and why? Is your new motivation fully self-contained — i.e. a reader does not need to look at the original report to understand the reasoning?
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 →