Announcing a new Design & Build procedure between the urgency request and the hearing makes the applicant's interest evaporate — but the City of Veurne still pays the costs
The Council of State dismisses Antwerps Architecten Atelier's challenge to the cancellation of the Veurne arts academy architect contract because the city announced a new Design & Build procedure six days before the hearing — yet still orders the city to pay the costs.
What happened?
In January 2019 the City of Veurne launched an open procedure to appoint an architect for the fit-out of a shell new-build as an arts academy. The specifications used three award criteria, with 'fee' worth 55 points. The fee calculation assumed total works of €2,500,000. At the same time, the contract was treated as a 'lump sum' contract — a tension that would later prove decisive. Six bidders submitted offers, including Antwerps Architecten Atelier (AAA). On 5 August 2019 Veurne awarded the contract to A 1 Planning Architectenbureau. By judgment no. 245.480 of 19 September 2019 the Council of State suspended that award. The Council found the contract was a lump-sum contract — incompatible with how the fee percentage had been engineered. In the wake of that suspension Veurne took an unusual route. On 8 October 2019 the city asked the selected bidders whether they were prepared to perform the contract at the amount on their offer form. Three of the four agreed; AAA did not. The college then decided on 25 November 2019 to cancel the contract entirely. Two grounds were given: (i) the specifications contained 'inaccuracies, at least ambiguities' on the fee criterion, and (ii) on further reflection, appointing a self-employed and statutorily protected architect was not necessary to deliver the project. AAA filed a UDN suspension on 13 December 2019. The hearing was set for 10 January 2020. On 23 December 2019 — ten days after the UDN was filed — the college decided to retender the contract in a different form: a Design & Build via negotiated procedure with prior publication, estimated at €2,500,000. AAA would therefore be able to bid again, albeit in a wider team of designers and builders. The Council ruled that AAA had invoked loss of chance, not entitlement to the award. The 23 December 2019 decision largely cured that loss: the contract was back on the market in a new form. AAA seemed to admit at the hearing that pursuing suspension had become 'counterproductive'. Moreover, AAA itself raised at the hearing that the specifications were unclear about the stability study — indirectly supporting the second cancellation ground. The Council found AAA's interest insufficient and dismissed the application, but ordered the City of Veurne to pay the costs and a procedural indemnity of €700, since the loss of interest was caused by the city's 23 December 2019 decision.
Why does this matter?
A contracting authority that cancels a contract and shortly afterwards announces a new procedure for the same object often undercuts the applicant's standing — even where the new procedure wears different procedural clothing (a negotiated procedure instead of an open one, or Design & Build instead of a pure architect commission). For bidders this means a UDN against a cancellation is risky if the authority can quickly come back with something new. For authorities it is a warning: re-tendering may evaporate the applicant's interest, but does not protect you from the costs — if the new decision lands after the UDN has been filed, you typically pick up the court fees and the procedural indemnity.
The lesson
If you are weighing up whether to challenge a cancellation, first check whether the authority can launch a new procedure you can re-enter — even in a different shape. If they can, your interest will almost certainly disappear and only the costs will remain in dispute. For authorities the inverse holds: a swift re-tender in a new form can vaporise the applicant's interest, but watch your timing — a decision that lands only after the UDN has been filed costs you the court fees and the procedural indemnity anyway.
Ask yourself
Have you been notified of a new procedure for the same object between filing the UDN and the hearing? Then take a hard look at whether your interest still stands — a Design & Build procedure you can re-enter, even as part of a team, usually erodes your loss of chance.
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 →