You won the first suspension — and you think the contracting authority is now obliged to award to you? The opposite can happen: in round two you fall out on irregularities
The Council of State rejects Fire Technics's second urgent suspension request against the Hainaut-Centre rescue zone: after a successful first suspension in February 2020, the contracting authority may withdraw its decision and issue a new award decision in which Fire Technics's bid is excluded for substantial irregularities — even if that bid was found regular in the first round.
What happened?
On 14 November 2019 the Hainaut-Centre rescue zone publishes specifications for a six-year framework agreement for the supply of 8,000-litre tank trucks. Two bidders submit: VANASSCHE FFE NV (€2,414,757.89) and FIRE TECHNICS NV (€2,375,847.10). Both offer the same vehicle — a Volvo chassis. On 30 December 2019 the contracting authority finds both bids regular and awards to VANASSCHE on the basis of the award criteria (92.29 points to Fire Technics's 90). Fire Technics is upset: it is cheaper and its vehicle is technically identical. On 21 February 2020 the Council of State suspends the first award decision in judgment no. 247.115 — the contracting authority had added unannounced criteria during evaluation. Then comes the twist. On 11 March 2020 the contracting authority withdraws its decision. Without a new call to tender and without amended bids — unilaterally and, according to Fire Technics, 'in the greatest secrecy' — the executive bureau on 22 April 2020 issues a new award decision. Once again VANASSCHE is chosen, but via a different route: Fire Technics's bid is declared irregular for a series of substantial and non-substantial irregularities that had not been flagged in December 2019. The new decision is sent by registered letter on 19 May 2020, received on 25 May 2020 — the day after a long Ascension weekend. No electronic notification despite the law allowing it. Fire Technics sees deliberate delay there, to shorten the 15-day urgent-suspension window. On 3 June 2020 it nonetheless files a second urgent-suspension request. Fire Technics raises eight grounds, which the Council reduces to five complaints: 1. After the first suspension, the contracting authority should have started the procedure ab initio rather than simply issuing a new decision on the same bids. 2. The contracting authority then deliberately sought irregularities to exclude Fire Technics so the award criteria need not be applied. 3. The conduct was 'unilateral' and adversarial. 4. The alleged irregularities did not exist or were at any rate not substantial — six substantial irregularities are alleged and all are entirely contested. 5. Both bids are identical (same Volvo chassis), so one cannot be regular and the other irregular. The Council rejects each of these. The key points: — On procedure: a contracting authority that withdraws its award decision is not required to relaunch the entire procedure. It may issue a new decision based on the same bids, provided it does so correctly. A suspension thus does not 'win' a right to the contract for the suspending party. — On the excluded bid: Article 76 of the Royal Decree of 18/04/2017 expressly allows the contracting authority to identify substantial irregularities not noticed in a first analysis. Here these included missing warranty certificates (1.16.2-1.16.4: 15-20 years), unclear references to 71-page or 200-page annexes without page numbers, a hydraulic diagram that diverged from the specifications (wrong type of pre-mixer, no Ø70 outlet), and missing proof of EMC compliance. The Council holds these irregularities substantial — they make 'incomplete or uncertain' the bidder's commitment to perform under the foreseen conditions. — On equal treatment: 'identical vehicle' does not mean 'identical bid'. A bid covers far more than the vehicle itself: annexed documents, diagrams, certificates, declarations. The fact that Fire Technics and VANASSCHE proposed the same Volvo does not relieve them from properly submitting their own required documents. The contracting authority cannot be required to 'complete a bid with lacunae by consulting another's bid'. — On the shortened weekend: the notification period was respected; sending just before a long weekend does not in itself breach transparency or due diligence. None of the eight grounds is serious. The urgent-suspension request is rejected. The bids remain confidential.
Why does this matter?
A successful suspension is no blank cheque. Applicants who win a first ruling can expect the contracting authority to revisit the decision — but that revision may also turn against them. The authority gets to look at the whole file again and may identify irregularities it had missed in the first round. As this judgment shows, that is not an unlawful manoeuvre to flip the outcome but simply an application of Article 76. For bidders: even when you think your bid was 'already approved' in a first round, its regularity remains vulnerable until the award is final. For contracting authorities: you are not bound by a first analysis that contained errors — you may correct it, even to the disadvantage of the party that obtained the suspension.
The lesson
When you win a suspension, do not only use the time to weaken your competitor; scrutinise your own bid with the same rigour the contracting authority will in round two. Have you provided a certificate or document for every requirement? Do you reference specific pages in annexes, or do you send a general 'see annex 9' for a 71-page document? Does every diagram and technical answer match exactly what the specifications ask, or is there a divergence you could explain in December and that suddenly becomes substantial in April? In a second round, small inaccuracies that slipped through the first time can suddenly tip the balance.
Ask yourself
Have you obtained a first suspension and are you waiting for a new award decision? Ask yourself: does my bid have unambiguous support for every requirement in the specifications? Do I reference specific pages rather than entire annexes? Have I attached certificates for every required warranty and specification? Are there no elements in my diagrams or technical answers that diverge from what is literally requested? An authority reading your file a second time may expect everything to match — no more, but certainly no less.
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 →