One per cent short on large dwellings: Council of State suspends the Brussels housing authority’s design contract for 70 homes in Watermael-Boitsfort
The president of the Sixth Chamber suspended, under extreme urgency, the decision of the Brussels regional housing authority (SLRB) to award a full design-and-supervision services contract for some 70 social and mid-range dwellings to the Pierre Blondel Architectes team, because the tender documents framed a minimum of 30 % large dwellings as an ‘obligation’, the winning tender offered only 29 %, and the authority could not brush that deviation aside as non-substantial while simultaneously asking the winner to adjust its tender.
What happened?
In late December 2021 the Brussels regional housing authority (SLRB) launched a restricted procedure for a full design mission: a multidisciplinary team was to design and supervise the construction of about 70 dwellings (80 % social, 20 % mid-range), a community hall, parking and 165 bicycle spaces on avenue des Cailles in Watermael-Boitsfort, under the Alliance Habitat programme. Seven teams applied, five were selected, and all five tendered by 11 August 2022. The advisory committee scored the tenders on five criteria (urbanity 35 %, habitability 25 %, sustainability 20 %, technicality 10 %, project economy 10 %) and ranked Pierre Blondel Architectes + Alt-O + COSEAS + BESP first with 79/100; the Cité Jardicole team — DXA.Archi, Atelier Caneva-s, Sami Kamar, Ney & Partners WOW and XCO Engineering — came second with 73/100. On 6 October 2022 the board awarded the contract to the Blondel team and paid the other bidders the €8,000 premium provided for. The snag: annex 3 of the specifications allowed a reduction of up to ten dwellings only ‘as long as the following two obligations are respected’ — at least 5 % accessible dwellings and at least 30 % large dwellings (three bedrooms or more). The Blondel tender contained 63 dwellings of which 18 were large: 28.57 %, rounded to 29 % in the analysis report. The committee labelled this a non-substantial irregularity, ‘minor and easily modifiable without impact on the project’. The same day, the board also asked the chosen designers to ‘revise the number of dwellings towards the target of 70’. The Council of State was unpersuaded. The SLRB’s objection that the applicants themselves had offered only 4.62 % accessible dwellings and therefore had no interest in the plea failed: the analysis report had found no irregularity whatsoever in their tender. On the merits, the Council held that the reasoning ‘easily modifiable’ betrayed an intention to have the tender amended after submission — not an execution-phase modification under articles 38 et seq. of the Royal Decree of 14 January 2013, but a request to change the tender itself. Combined with the indications that the SLRB had genuinely intended the 30 % threshold as essential, a manifest error of assessment could not prima facie be ruled out. The plea was held serious in both branches, the balance of interests raised no decisive objection, and suspension was ordered — against the contrary opinion of the first auditor. Costs were reserved.
Why does this matter?
The judgment goes to one of the most practice-sensitive questions in procurement law: when does a deviation from the tender documents amount to a substantial irregularity requiring the tender to be set aside? Article 76 of the Royal Decree of 18 April 2017 leaves the contracting authority real discretion, but this case marks the boundary. An authority that frames a threshold as an ‘obligation’ — here even as the condition under which a variation in the number of dwellings was permissible — creates the impression of a minimum requirement, even without the words ‘on pain of nullity’. And an authority that then reasons the deviation away as ‘easily modifiable’ while immediately asking the winner to adjust its project undermines its own logic: the Council read into this the intention to have a tender modified after submission, precisely what article 82 prohibits. The procedural strand is equally interesting: the SLRB’s attempt to have the plea declared inadmissible because the applicants themselves fell short of a threshold foundered on a factual finding — the analysis report had recorded no irregularity on their side — and on the principle that, since the Act of 17 June 2013, the interest in a plea no longer depends on the applicant’s chances of winning the contract. Finally, the case shows that a gap of a single percentage point can suffice to bring down an award, and that the Council will suspend against its own auditor’s advice if need be.
The lesson
For contracting authorities: decide before publication which requirements are truly minimum requirements and say so explicitly — and be equally explicit about which provisions are not conditions of regularity, as was done here for the technical annex but not for the housing programme. If you find the winner’s deviation ‘minor’, give substantive reasons why it does not affect comparability, competition or the bidder’s commitment, and never fix it by asking the bidder to adjust its tender: that request is the best evidence that the requirement did matter. For bidders: obtain the analysis report and check the winning tender against every threshold framed as an obligation. One percentage point below a minimum that the specifications set as a condition can suffice for a serious plea — and a counter-objection about your own tender only holds if the authority itself recorded an irregularity there at the time.
Ask yourself
Do your tender documents frame thresholds as ‘obligations’ or ‘minima’ without stating the consequences of non-compliance — and do you realise the Council may read minimum requirements into them? If you overlook a deviation in the winning tender, can you explain why it does not affect the comparability of tenders or competition, without falling back on ‘we will fix it during execution’? Do you know that asking the chosen bidder to adjust its project after award can qualify as a prohibited modification of the tender? And as an unsuccessful bidder: have you checked the analysis report for deviations by the winner from every threshold in the specifications, however small?
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 →