Switching to the intercommunal entity after the bids have come in — then you must have actually compared the prices, and that comparison must show in the file
The Council of State suspends the decision of Morlanwelz to halt the award of eighteen waste lots and continue cooperation with the intercommunal HYGEA, because the reasoning ('the offered conditions are not sufficiently interesting compared to what HYGEA can offer') is a boilerplate clause that leaves no trace of an actual price comparison.
What happened?
The municipality of Morlanwelz publishes on 1 February 2019 a service contract 'Traitement des déchets communaux' — twenty-one lots ranging from household waste to asbestos, dead animals and tires, total estimated at €91,381.30 excl. VAT. According to the specifications (point 1.10) price is the sole award criterion. TRANSMOSCA submits an offer for all lots on 6 March 2019. On 1 July 2019 the municipal college awards lot 19 to a third bidder. On 15 July 2019, lot 16 (tires with rim, removal) and lot 18 (tires without rim, removal) are awarded to TRANSMOSCA — two won lots, contracts concluded. But for the remaining eighteen lots the college reverses course on 12 August 2019: it halts the procedure and decides to 'continue cooperation with the intercommunal HYGEA'. The reasoning, as obtained by TRANSMOSCA, contains three substantive lines: 'after analysis of the offers for lots 1-2-3-4-5-6-7-8-9-10-11-12-13-14-15-17-20, it appears that the conditions offered by the bidders are not sufficiently interesting compared to the services that the intercommunal HYGEA can provide in this matter'. No prices, no comparison table, no report. TRANSMOSCA challenges the halt via the extreme-urgency suspension procedure. Its central grievance: the reasoning is a boilerplate clause and proves nothing about an actual price comparison. Moreover, 'being sufficiently interesting compared to HYGEA' was nowhere in the specifications — HYGEA had not submitted an offer, and bidders did not know the intercommunal's tariffs. The municipality filed no administrative file. The Council of State agrees: the reasoning contains 'no indication regarding the offers' and 'in no way allows to determine whether the contracting authority carried out a price comparison, while according to the specifications price is the sole award criterion'. In the absence of an administrative file, it is not even established that an examination report exists. The ground is serious; the balance of interests favours suspension (the municipality filed no observations, hence no demonstrated harm). The Council suspends the decision.
Why does this matter?
A contracting authority may halt a procedure — that is in principle its prerogative. But if after receiving offers it decides not to award because it 'prefers to work with the intercommunal', a double problem arises. First: 'being sufficiently interesting compared to the intercommunal' was nowhere announced in the specifications as an evaluation standard. Bidders could not align their offer with it — undermining transparency and equal treatment. Second: even if that evaluation were implicitly admissible, the contracting authority must be able to demonstrate it has actually compared. Which price per tonne from which bidder? Which price per tonne from HYGEA? A table, a report, anything. For bidders this is a double signal. One: a procedure where the authority suddenly switches to in-house after the opening date is always suspicious — request the reasoning. Two: a two- or three-line reasoning that only refers to 'the services the intercommunal can provide' is so thin that suspension is realistic. For contracting authorities the reverse lesson is clear: if you really want to operate in-house, decide so before publication, not after receiving offers — or do produce a formal price comparison with figures you can put on the file.
The lesson
If a contracting authority suddenly decides not to award because 'the intercommunal is more interesting': check three things. One — was that criterion in the specifications? If not, an award criterion added after opening = principle violation. Two — does the reasoning contain concrete prices or just a general statement? Two or three lines without figures is a boilerplate clause. Three — can a request for the administrative file reveal that no comparison analysis was simply prepared? In that case, the matter tips.
Ask yourself
At the time of submitting my offer, did I know that the contracting authority would use an 'in-house alternative' (intercommunal, in-house, autonomous municipal company) as an award yardstick? If not, and the procedure is halted after opening for that reason: the reasoning must show that an actual price comparison was made — otherwise it is suspendable.
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 →