Two parallel procedures for the same contract? The Council sees through the urgency excuse
The Council of State suspends the award of a directional drilling under the Albert Canal to Van Vulpen because Eandis ran the same contract simultaneously through a mini-competition within its framework agreement and through a parallel negotiated procedure without prior publication with other companies — a setup that fatally undermines the 'imperative urgency' required by article 53, § 2, 1°, c) of the 15 June 2006 Procurement Act.
What happened?
Since 2013, Eandis System Operator had a framework agreement for lot 1 (directional drilling, eastern region) with seven contractors including Verbraeken Infra. On 8 March 2016, Eandis launched a mini-competition under that framework for one specific drilling — a bundle of 3 x PE Ø250 and 5 x PE Ø200 across the Albert Canal at Merksem. Two bids came in (Verbraeken and Fabricom), both far above the budget. After technical meetings, Eandis launched a second mini-competition on 14 April 2016 with the seven framework contractors. On exactly the same day, Eandis e-mailed four other companies — Hak, Van Vulpen, Fordibel, Dekabo, none of them framework contractors — with the same tender documents and the same deadline of 28 April. Two of them bid (Hak and Van Vulpen). On 23 May 2016, the management committee awarded the contract to Van Vulpen for 364,900 euros ex. VAT. Only on 13 June 2016 did the same committee formally close the still-running mini-competition. The non-award letter to Verbraeken — dated 30 May but only sent on 29 June 2016 — invoked 'budgetary reasons' and article 35. Pressed by Verbraeken's lawyers, Eandis on 19 August 2016 finally revealed it had used a negotiated procedure without prior publication 'on the basis of article 53, § 2, c'. Before the Council, Eandis justified the urgency by reference to De Scheepvaart's bridge demolition (early 2017) and the need to relocate utility lines, plus a parallel drilling planned by Water-Link. But document 27 showed Eandis already had a meeting with De Scheepvaart on 15 February 2016 — before the first mini-competition. The urgency was therefore foreseeable. There was no formal prior decision motivating the choice of the negotiated procedure or examining whether the conditions of article 53, § 2, 1°, c) were met. The 12th Chamber (chamber president Dierk Verbiest) ruled clearly: as long as the mini-competition was running with bids in hand, urgency could not justify a parallel negotiated procedure. The real reason was the high prices in the mini-competition — and that, even if relevant, could only have applied after formal closure of the mini-competition. The award to Van Vulpen was suspended; the closure decision itself remained valid because 'budget overrun' as motivation was not incorrect.
Why does this matter?
For utilities-sector authorities: the recipe 'mini-competition gives expensive bids — so move to article 53 § 2, c' does not work. Imperative urgency requires that the deadlines of standard procedures cannot be met because of unforeseeable events not attributable to the authority. A budget mismatch or late planning does not qualify. For framework contractors: if you spot the same contract being tendered in parallel outside your framework, that is a serious red flag — a suspension is achievable.
The lesson
If you notice that a contracting authority is dragging out your mini-competition while the market whispers that the same work is already being executed by another firm: ask formally and in writing for confirmation of the procedure followed and for the underlying motivation. If you don't get a clear answer, or you uncover a parallel negotiated procedure without publication, you have a strong suspension case — especially if you can show the 'imperative urgency' was at least partly foreseeable or self-inflicted.
Ask yourself
You bid in a mini-competition under your framework agreement. Then you hear from the market that the work is already being done by a non-framework contractor. The official non-award letter follows weeks later, citing 'budget reasons'. Investigate whether a parallel procedure ran — if so, and without a formal motivation decision for the use of article 53, § 2, c, suspension is very achievable.
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 →