An 'amendment' of €270,000 per month to a €4,965-per-month contract isn't an amendment — it's a new contract
The State Secretary for Asylum and Migration signs an 'amendment' to an existing FEDASIL security contract and in reality awards a new contract without publication, without a reasoned award decision, for a different building, at a monthly amount exceeding the entire original contract.
What happened?
In May 2015 FEDASIL awards H-Security a guarding services contract (FED/0A/14/510) after an open tender — €236,400 ex VAT over four years, around €4,965 a month. Object: guarding FEDASIL's Service Dispatching at WTCII (Antwerpse Steenweg 59b in Brussels) and crisis centres managed by FEDASIL. The competent contracting authority is FEDASIL's director general. In October 2015 the Buildings Agency awards a one-month static guarding contract for WTC III to Security Guardian's Institute. That contract is extended twice and expires on 31 December 2015. On 28 December 2015 an official from the Immigration Office tells Security Guardian's by email that no new procurement will be launched because 'we are relying on an existing contract under art. 26 §1, 2°, b' — namely the FEDASIL/H-Security contract. Security Guardian's files an extreme-urgency suspension on 31 December. At the hearing of 29 January 2016 the State Secretary for Asylum and Migration produces an 'amendment to open tender FED/0A/14/510', signed on 14 January 2016 with H-Security, for 24/7 guarding of WTC III from 1 to 31 January 2016 — up to 14 agents per day at hourly rates between €25.30 and €43.64, an estimated value of around €270,000 for a single month. The Council of State makes three findings. One: WTC III is not among the buildings listed in the original tender specifications. Two: the 'amendment' was signed by the State Secretary, not by FEDASIL's director general, who under the original specifications is the only one competent to modify the contract. Three: the monthly amount is more than fifty times the monthly amount of the original contract. An amendment that changes the essential conditions of a contract constitutes a new contract regardless of how the parties label it. The Council suspends the award to H-Security: no reasoned decision, no procurement procedure, nothing.
Why does this matter?
This judgment is a textbook example of new awards smuggled in under the banner of existing contracts. The technique is familiar: an authority that has no time or appetite for a new procedure finds a running framework agreement and says 'we'll just add an amendment'. Bid managers who get hold of such an extension from a competitor now know what to check: object, place, amount, signatory. If any of those four changes materially, it isn't an amendment but a new contract — with all the remedies that come with it. For contracting authorities the warning is clear: the wish to solve an operational problem quickly — here, guarding asylum seekers in a requisitioned building — does not justify bypassing the procurement rules. Urgency may open the door to negotiated procedures without publication, but even those require a reasoned decision and compliance with the law.
The lesson
Before signing an 'amendment' to a live public contract, check four things: does the object remain substantively the same, does the location stay within the original specifications, does the value stay in the same order of magnitude as the original contract, and is the change still being signed by the same contracting authority? If any one of those four breaks, you aren't dealing with an execution change but with a new award — and that requires a reasoned decision and a valid procedure, even if you're under time pressure.
Ask yourself
If you're unsure whether a modification is an 'amendment' or a new contract: compare the monthly value of the change with the monthly value of the original contract. If the ratio is 5x or more, it's almost certainly a new contract, regardless of what you've called the document.
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 →