A selected candidate who fails to submit a first offer is in principle out of the race — unless the contracting authority fully reopens phase two with a fundamentally amended specification
The Council of State rejects the suspension of the award of the Zorg Leuven central kitchen contract to Compass Group, because the contracting authority did not 'continue' phase two of the negotiated procedure but fully halted and reopened it with a fundamentally amended specification — allowing the other selected candidate (who had not submitted a first offer) to participate again.
What happened?
On 8 June 2018 Zorg Leuven — a welfare association under public law within the framework of the local government decree — publishes a contract for 'Framework agreement for the operation of the central kitchen of Zorg Leuven and catering', a social service under annex III of the law of 17 June 2016. Chosen procurement procedure: competitive procedure with negotiation (article 89 § 1, 3° law 2016). Two candidates are selected: Sodexo Belgium and Compass Group. On 21 December 2018 both candidates receive the specification (no. ZL-FCD-2018-001). For the first submission on 12 February 2019, only Sodexo files an offer. Compass Group remains silent. One would logically expect Compass to be out and Zorg Leuven to negotiate with Sodexo — but that is not how it goes. On 28 March 2019 the board of Zorg Leuven decides to 'amend the specification within the object of the contract'. The reasoning is detailed: Sodexo's offer lies 'far above the planned budget', possibly because of pricing policy and the way in which the original specification dealt with risks (penalties for late delivery, traffic accidents, third-party insolvency). 'A number of obstacles' are identified both on Sodexo's side and in the specification itself. Conclusion: a new specification is needed, and — importantly — the board 'may presume that these changes are so significant that selected candidates may have based on them their decision not to submit an offer'. In other words: Compass gets a second chance. On 29 March 2019 both selected candidates are re-invited, with the amended specification (no. ZL-FCD-2018-138). Sodexo confirms receipt and raises two concerns: the impact on bid cost and the warning that an amendment of the specification cannot be an opportunity to allow a bidder 'who had originally not submitted an offer to nonetheless submit one'. Zorg Leuven replies on 8 April 2019 that the specification is 'fundamentally amended' and that 'at least restarting phase two' is necessary. Both candidates submit a first and final offer on 6 May 2019. The award report of 29 August 2019 declares Sodexo's offer substantially irregular and awards the contract to Compass Group Belgilux. Sodexo files an extreme-urgency suspension. First ground: violation of articles 38 §§ 4-5, 89 § 4 of the 2016 law, article 76 § 4 third paragraph and article 92 of the 2017 procurement Royal Decree, plus equal treatment. Sodexo argues: a selected candidate who has not submitted a first offer in time is out; one cannot 'regularise' a missing offer via article 76 § 4. The Council disagrees with the framing: Zorg Leuven did not 'continue' but 'halted and restarted' phase two on the basis of a new specification. That is no prohibited 'late offer' from Compass — it is a new submission deadline applying equally to both candidates. Limits do exist: the Court of Justice in C-298/15 prohibits modifications 'so substantial that they would have attracted potential bidders who could not otherwise have submitted an offer'. The contracting authority must show the modifications do not contradict the selection guide or notice. Zorg Leuven so claims and Sodexo does not contest this in its application. Moreover, despite its interest in this ground, Sodexo failed to indicate 'in what respect and to what extent the second specification differs from the first' so as to confer on Compass an advantage. Second ground — modification of minimum requirements and award criteria — is likewise not serious: same reasoning, no demonstrated manipulation. The application is rejected.
Why does this matter?
The boundary between 'continuing a procedure' and 'halting and restarting' is no academic hair-splitting — it determines whether a competitor who filed nothing in phase one can still win. This judgment draws the line clearly. On one side: a contracting authority may not simply accept a late first offer; that would amount to regularising a missing offer (article 76 § 4 of the 2017 procurement Royal Decree forbids it). On the other side: a contracting authority may fully reopen phase two with a 'fundamentally amended' specification, provided three cumulative conditions are met — (1) the changes remain within the selection guide and original notice, (2) the changes are not so substantial that they would have attracted potential bidders unable to bid otherwise, and (3) no evidence of manipulation in favour of a specific candidate. For bidders who did their work in phase one and watch a 'sleeping competitor' return, the judgment offers tactical advice. Don't dwell on the fact the other party did not submit a first offer — that fight is lost. Focus instead on the content of the changes: compare the old and new specification paragraph by paragraph, identify the change that potentially benefits your competitor, and build your ground around that concrete element. General complaints about 'equal treatment' without concrete clauses or numbers will fail. For contracting authorities sitting on an expensive or irregular first offer wanting to revisit competition: meticulously document that changes remain within the original selection and notice criteria. And expressly state the procedure is being 'halted and restarted' — not 'continued with amendments'.
The lesson
A contracting authority sitting on an expensive first offer wanting to open the procedure to other selected candidates must choose between two paths. Path one — continuing with regularisation — does not work: article 76 § 4 of the 2017 procurement Royal Decree only allows regularisation of a submitted offer, not of a missing one. Path two — halting and reopening with a fundamentally new specification — does work, provided one stays within the selection guide and original notice. If you challenge an award on this ground: compare both specifications concretely and indicate which change gave your competitor an advantage. General complaints will not succeed.
Ask yourself
You are the only one to file a first offer and you suddenly see the procedure reopened with a 'fundamentally amended specification'? Compare paragraph by paragraph with the old version. Three test questions: (1) Does the selection guide remain untouched (otherwise C-298/15 violation)? (2) Do the changes make it possible for a new category of bidders to compete that previously could not have? (3) Do the changes objectively give your competitor an advantage over you? Question 2 or 3 with one 'yes' and concrete substantiation = serious ground.
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 →