What the contracting authority calls a 'wish' and what is a binding requirement — in 'Espace Rogier' that distinction costs the City of Namur a full suspension
The Council of State suspends the award of a 14 million euro combined contract to Cœur de Ville because the general programme — repeatedly and unambiguously — imposed an R+3 height for the private housing blocks, while the winning bid proposed R+5: a binding specification, not a 'wish', and the overshoot affects the price award criterion.
What happened?
Since 2014 the City of Namur has been working on the redevelopment of 'Espace Rogier' in its centre: concert halls and horeca, a conservatory plus a second project around the Cité des Métiers — offices, social housing and an underground car park, plus the sale of plots for private housing. On 28 June 2018 the city council approves the specifications for the second component. Estimated value: €14,000,000 incl. VAT. Open procedure, no lots — explicitly justified by the cohérence urbanistique of the entire block. Four bidders submit offers on 2 May 2019: Cœur de Ville, Les Entreprises Gilles Moury, CIT Blaton and Immo Louis De Waele. On 5 November 2019 the City selects the first three (Immo Louis De Waele is excluded for substantial irregularity), approves the award report drafted by the Bureau Économique de la Province de Namur and awards the contract to Cœur de Ville. Moury — ranked second — files an extreme-urgency suspension on 28 November 2019. The sole ground, first branch: the general programme of the specifications imposes on no fewer than eight pages (p.4, p.12, p.13, p.15, p.17, p.32, p.38, p.40, p.41) an 'R+3' height for the private component — 'il s'agira d'une construction en R+3', accompanied by schemes. Cœur de Ville however bid an R+5. According to Moury this is a substantial irregularity that should have led to rejection. The City and the intervening party defend themselves with the same reasoning: the private component concerns 'the sale of plots to the adjudicataire who shall build, according to its own programme, housing'. The general programme would only be a 'wish', published under the heading 'parti d'aménagement retenu' on p.41 as 'synthesis of reflections […] on a desired layout and use'. The choice not to create lots would show that the two components are loosely linked. Moreover, the Q&A form contained a question on R+4 to which the City referred to the urban planning authorities ('l'acceptation du gabarit R+4 dépendra du projet présenté'), which would prove that the R+3 height was flexible. The Council of State does not follow that reading. The wording 'il s'agira d'une construction en R+3' is not a wish but an obligation. The fact that the specifications elsewhere give the bidder freedom to design 'selon son propre programme' does not exclude that some constraints — such as the height — were indeed imposed. The synthesis on p.41 under 'wishes' does not outweigh the ten to twelve other passages plus the schemes presenting R+3 as the building concept. The Q&A reply concerned only the urban planning aspect and cannot alter the scope of specifications. The presence of an indemnity clause (the contractor indemnifies the City for damages around the private housing) follows logically from the transfer deeds — it does not prove that the height was 'indicative'. Under article 76, § 1, third paragraph of the Royal Decree of 18 April 2017, an irregularity is substantial as soon as it gives a discriminatory advantage to a bidder, distorts competition or hinders the evaluation of the offer. Here the link is direct: a higher gabariet means more dwellings, hence a higher economic rentability of the private component. That allows the bidder to offer a lower price for the public component — exactly the first award criterion, worth 350 of 1025 points. The irregularity is therefore substantial; the ground is serious in its first branch. The Council does not examine the other two branches, suspends the award of 8 November 2019, refuses Moury's request for forced re-ranking (which exceeds its referee competence) and keeps the offer documents confidential.
Why does this matter?
Contracting authorities often mix binding requirements and soft 'wishes' in their specifications. For bidders that is a minefield: how do you know which rule to follow strictly and which you may interpret creatively? This judgment points the way. What matters is not the heading ('wish', 'parti d'aménagement', 'souhait') but the wording itself plus the consistency across all procurement documents. An indicative statement — 'shall be', 'must' — combined with repetition on multiple pages plus supporting schemes will be read by a Council of State as binding, even if the contracting authority later defends the opposite reading. For bid managers this has two immediate consequences. First: before choosing a 'creative' interpretation that deviates from the specifications, reread the three categories of documents (administrative clauses, technical programme, technical fiches/schemes) and count the recurrences of the contested requirement. Above three or four mentions you are on weak ground. Second: if you are second or third ranked and you find that the winner did not respect such a requirement, the combination 'discriminatory advantage' (article 76, § 1, third paragraph) + impact on award criterion is a strong suspension lever — especially in combined contracts where elements economically influence each other. For contracting authorities the lesson is the opposite: if you really mean a wish, write it that way and use the conditional ('could', 'may', 'is left to the bidder's discretion'). A Q&A reply pointing to urban planning is no waiver — it changes nothing about the specifications.
The lesson
When you challenge an award (or when you analyse offers as the contracting authority): start with a textual inventory of the specification that makes the difference. How often does it appear? In which documents (administrative clauses, programme, technical fiches, schemes)? In which verb form — indicative 'is' or conditional 'would'? An R+3 that 'shall be' is fundamentally different from an R+3 that is 'desired'. And check above all: does the breach impact an award criterion? In combined contracts (public/private component, design/build, supply/maintenance), the components seem separate; economically they usually are not.
Ask yourself
Look at your specifications (or those of a contract you finished second on): how often does the contested requirement appear across all procurement documents combined? If more than five mentions plus at least one scheme that visualises the rule: before the Council of State you are in 'binding requirement' territory, and the contracting authority can no longer rely on the 'wish' argument.
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 →