A contracting authority that changes its mind only has to motivate the NEW position — not defend the old one
The Brussels-Capital Region invited Orange into a negotiated procedure without prior publication on the ground of exclusivity, received its BAFO, and then decided to abort the procedure because 'other operators can also handle this' — the Council of State upheld that about-face: a changed position only requires reasoning of the NOW, not an explanation of the THEN.
What happened?
In 2012, the Brussels-Capital Government awarded the 'IRISnet2' contract (BB2011.006) to Mobistar (later Orange) — a two-lot telecom contract: fixed telephony + data (lot 1, 10 years, via a Special Purpose Vehicle, the cvba IRISnet) and mobile telephony (lot 2, 3 years + extension until 31 October 2017). For lot 1 the mandators had call options on value-added services — a contractual exclusivity Orange leaned heavily on. In 2016 the Region wanted to develop a separate 'Unified Communication' service via the cvba IRISnet. On 14 July 2016 the Government decided to start a negotiated procedure without prior publication based on article 26 §1 1° f) of the Public Procurement Act of 15 June 2006 — the exception clause for contracts that, due to technical reasons or exclusive rights, can only be awarded to one specific service provider. The CIBG was made the central purchasing body, invited Orange, and received its BAFO on 5 December 2016. Then the story shifts. On 23 February 2017 the Government suddenly decided to follow 'a procedure guaranteeing healthy competition' — multiple suppliers, not just Orange. On 1 June 2017 the Government definitively decided not to award contract BB2016.047 and instead launch a new mobile telephony contract (BB2016.010). The reasoning of 19 June 2017: other operators can, 'using commonly available technologies and through cooperation with the lot-1 contractor, without resorting to special techniques or disproportionate means', set up an equivalent UC service. So no exclusivity, no article 26 §1 1° f), but article 35 (no obligation to award). Orange filed an extreme-urgency application. Three sub-grounds: (1) the assertion that 'others can do this too' is a bare statement, not substantiated; (2) the reasoning says nothing about Orange's contractual exclusivity on the value-added services of lot 1; (3) why was article 26 §1 1° f) a valid legal basis in November 2016 to invite Orange, but suddenly not in June 2017? The XIIth holiday chamber rejected the application with three key lines of reasoning. One: the formal duty to state reasons requires 'sufficient clarity on the determining motives' — not that every bidder argument be answered in the decision itself. Two: administrative decision-making is broader than the award decision alone. The Brussels secretary of state had already extensively replied to Orange's objections in a letter of 16 May 2017. When the addressee learns the reasons via other channels — for instance via prior correspondence — and can incorporate them into its application, the purpose of the duty is met. Three — the core: 'It falls to the administration to revisit a previous course of action it now considers unlawful, without having to motivate why it then believed that previous course was lawful. From the perspective of the formal duty to state reasons, it suffices that the administration explains why this previous course of action now appears unlawful to it.' In other words: an about-face does not in itself need to be justified — only the current position must be sound. The application was dismissed, Orange paid €700 in costs to the Region and €140 to the CIBG.
Why does this matter?
For bid managers this is a sobering judgment. You receive an invitation under a specific legal basis (here: exclusivity), you invest in an offer, and halfway through the contracting authority says 'we got it wrong, we'll go open after all'. It looks arbitrary — but the Council of State grants the contracting authority a broad reconsideration power under article 35, and the bar for reasoning is strikingly low: only the new position must be substantiated, not the distance from the old. For contracting officers this is reassuring: if you realise you misjudged your legal basis, you may abort and restart without self-criticism about your original choice. For bidders it means: investments in a negotiated procedure are riskier than they look, because the authority can switch back at any moment.
The lesson
If you notice as a bidder that a contracting authority is changing legal basis (e.g. from negotiated without prior publication to open procedure, or from exclusivity to competition), focus your application on the substantive incorrectness of the NEW reasoning — not on its inconsistency with the past. The Council follows along when you show the new position is factually wrong, not when you only flag the about-face. Document ALL prior correspondence and arguments from the authority, because they count in the duty-to-state-reasons test.
Ask yourself
When a contracting authority aborts a negotiated procedure invoking article 35 and abandons the original legal basis (e.g. exclusivity, technical reasons): does your application demonstrate the factual incorrectness of the NEW position, not just the inconsistency with the old standpoint?
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 →