An uninvited bidder who still submits an offer can win — below the EU threshold a spontaneous bid is fair game
The Council of State refuses to suspend the award of the gym-floor renovation in De Alk because the Municipality of Alken, after severe flooding, could legitimately use the urgent procedure via the college of mayor and aldermen, and because a spontaneous bid from a non-invited company in a negotiated procedure without publication below the EU threshold may be considered.
What happened?
On 2 June and again on 23 June 2016, the Municipality of Alken was hit by severe flooding. The 'De Alk' sports and recreation domain was inundated and the parquet floor of sports hall 1 was damaged beyond repair — all June bookings were cancelled. At the council session of 30 June 2016 — the last before the summer recess — it was decided that quick repairs were needed and that decisions would go through the college of mayor and aldermen on the basis of article 157 § 2 of the Municipal Decree. On 6 July 2016 the college approved the tender documents (estimate 75,000 euros ex. VAT) and chose a negotiated procedure without publication on the basis of article 26 § 1, 1°, a) of the 15 June 2006 Procurement Act (low value). Four companies were invited: Topfloor, G.A.W., Janssen-Fritsen and Flexidal. But on 12 July, a fifth company — Kacela — spontaneously requested a site visit and ultimately submitted a bid (registered post on 26 July). The evaluation report of 16 August 2016 selected Kacela as economically most advantageous; the college awarded on 17 August. Topfloor sought urgent suspension on two grounds. First: the college lacked competence and a 'low value' negotiated procedure could not be reconciled with urgency. The 12th Chamber (Dierk Verbiest) rejected this: article 157 § 2 empowers the college in 'imperative and unforeseen circumstances' where the slightest delay would cause unmistakable damage, and the time between the flood (2 June) and the last council (30 June) was not enough to prepare the full tender file. Second: Kacela was not invited and her spontaneous bid should not have been considered. Also rejected: the general competition principle suffices to admit a spontaneous bid in a negotiated procedure without publication. Article 108 of the 2011 placement royal decree, requiring simultaneous written invitation, only applies above the EU threshold — which was not reached here. Application dismissed, 200 euros court fee and 700 euros procedural indemnity charged to Topfloor.
Why does this matter?
Two practical takeaways. One: in an unexpected disaster (flood, fire, collapse) a Belgian municipal college does not have to wait for the next council. Article 157 § 2 of the Municipal Decree (now article 269 of the Local Government Decree) empowers the college to decide on expenditures and tender conditions in imperative and unforeseen circumstances, provided the council is informed without delay. Two: in a negotiated procedure without publication below the EU threshold, the contracting authority does not have to invite all bidders simultaneously in writing. A spontaneous bid from a non-invited company may be considered — it actually strengthens competition. Above the EU threshold, article 108 of the placement royal decree applies more strictly.
The lesson
Local authorities acting fast after a disaster: document the 'imperative and unforeseen' facts (photos, damage inventory, scheduling impact), take a college decision on the basis of article 157 § 2 of the Municipal Decree (today article 269 of the Local Government Decree), brief the councillors in advance, and have the council formally take note at its next session. For bidders in a negotiated procedure below the EU threshold: the mere presence of a non-invited competitor's spontaneous bid is not a ground to challenge the procedure. To attack such a procedure, focus on concrete signs of manipulation or favouritism — not on the existence of the spontaneous bid as such.
Ask yourself
Your local authority faces severe disaster damage and the next council is weeks away. You prepare a college decision under article 157 § 2 (today article 269 LGD). Do you have: (a) a fact pattern of urgency and unforeseen-ness, (b) an estimate and tender documents, (c) at least three companies invited, (d) councillors briefed in advance, and (e) a built-in obligation to have the council take note at its next meeting? Five yes = your decision-making chain holds before the Council.
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 →