If you know the auditor finds your winner's permit unlawful, you cannot rush the award — even under the presumption of legality
The Council of State suspends the Port of Antwerp's award of 8 million euro of dredging works in the 4th dock to Martens & Van Oord, because the Port — despite known auditor reports finding the crucial OVAM permit unlawful — did not wait for the Council's ruling before proceeding.
What happened?
In February 2016 the Port of Antwerp tendered the deepening of the 4th dock fairway, around 213,000 m³ of mostly contaminated dredged spoil. The contractor would become owner of the spoil and had to obtain the necessary transport and processing permits. Two bidders responded in September 2016. The joint venture Verdieping H4H (Jan De Nul and Dredging International, with DEC and Envisan as in-house processors) bid 15,763,000 euro. Martens en van Oord Aannemingsbedrijf bid 7,987,500 euro — almost half. The price gap stemmed from a different execution scheme: Martens did not plan to process the spoil in a Flemish facility but to ship it across the border to the De Slufter dump in Rotterdam. To do so it had obtained an OVAM permit on 5 August 2016 (notification BE001005453, for 201,300 tonnes). That was the pressure point. The De Slufter permits formed a series. An earlier OVAM permit from 2013 had already been annulled by the Council of State on 29 October 2015. Six other permits were under appeal, and in May and June 2016 the auditor had filed reports recommending annulment in each. OVAM's reasoning across all these decisions was in essence identical: because the volume of dredged material was so large, processing in Flanders would require too many logistical steps and so cross-border shipping to Rotterdam could be allowed — a reasoning the auditor qualified as an unauthorised addition to the statutory BAT criteria. The Port knew all this. The trade association Federatie der Baggerwerken had warned the Port in writing on 23 August 2016, citing the auditor reports and noting that the 5 August permit was itself now under challenge. Yet the Port awarded the contract to Martens on 3 October 2016. The losing joint venture filed an extreme-urgency suspension. The central ground: the duty of care. A diligent contracting authority — given the pending proceedings, the earlier annulment and the consistent auditor reports — should have awaited the Council's ruling on the legality of the crucial OVAM permit. The Port and Martens countered with the presumption of legality (article 159 of the Constitution): an administrative authority cannot itself review the legality of another administrative authority's decision, and the earlier rulings concerned different notifications. The Council rejected both arguments. OVAM itself stated in its 5 August decision that the notification 'together with' the earlier ones 'forms part of the same project' and is 'jointly assessed'. The reasoning of the six permits the auditor had reported on was essentially identical to that of 5 August. And then the key point: the presumption of legality does prevent a contracting authority from declaring a permit unlawful itself, but it does not prevent it from postponing its own award decision while waiting for the Council's ruling. Where the auditor concludes in a series of successive reports, after substantive examination, that essentially identical decisions are unlawful, the duty of care requires the authority to await the Council's assessment before incorporating such a decision into its own decision-making chain. The Port did not advance any reason why postponement was impossible: the procedure had already taken eight months, and arguments about urgency raised only at the hearing came too late. Suspension granted. The third and fourth applicants (DEC and Envisan, group processing companies that had not signed the bid form themselves) were declared inadmissible: only the parties who actually submitted an offer have the standing to challenge an award.
Why does this matter?
This ruling exposes a frequently misunderstood distinction. 'I have to apply the presumption of legality' is a sound defence against the charge that you should have declared a permit unlawful yourself — you cannot, and must not. But the presumption is not a licence to push through when matters are actively in motion before the Council of State. When several auditor reports find identical permits unlawful, and the winning offer hinges on such a permit, the duty of care requires postponement of the award, not of the legality review. For bidders this is a powerful ground: if you lose to a competitor whose price advantage rests on a contested decision, and the contracting authority knew of the proceedings and the auditor reports, you have a strong basis for a suspension claim — independent of whether the underlying permit is ultimately annulled.
The lesson
If your winning bidder's advantage depends on a permit, authorisation or certificate that is actively under challenge before the Council of State, and you know the auditor has already recommended annulment in similar cases: wait for the ruling. You don't need to declare the permit unlawful yourself — you cannot — but you can and must postpone your own award decision until there is clarity. 'I have to assume legality and therefore cannot do anything' is not a lawful ground to proceed. If postponement is genuinely impossible because of urgency, motivate that formally in the award decision itself, not for the first time at the hearing.
Ask yourself
If the winning offer is at least 30% cheaper than the runner-up and that margin rests on a permit, authorisation or certificate currently under challenge with auditor reports recommending annulment: have you (a) postponed the award pending the ruling, or (b) explained in the award decision itself why postponement is impossible? A warning letter from a trade association or a competitor citing pending proceedings is not neutral noise — it is information that needs to enter your file.
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 →