Withdraw a first award decision and re-award to the other bidder? The motivation has to genuinely explain why you changed your mind
The Council of State suspends Verviers' second award decision because the motivation — a string of 'stereotyped formulas' on the conformity of the offers — does not show that the contracting authority actually carried out a fresh regularity check after withdrawing its first award, which had been based precisely on the substantial irregularity of that same offer.
What happened?
Following the July 2021 floods in the Verviers region, the school of Ensival was destroyed. In August 2022 the city of Verviers launched an open supply procedure for the demolition and reconstruction, including the supply and installation of 124 modular containers and foundations. Estimated value: €3,832,535 ex VAT. Two offers came in: Degotte (€2,999,839.71 ex VAT) and Symobo (€2,614,417.92 ex VAT — clearly cheaper). First award decision on 6 October 2022: the city awards to Degotte, declaring Symobo's offer 'substantially irregular' — Symobo allegedly used an older version of the plans, predating an erratum notice of 30 August 2022, missing essential changes (ventilation system, fire compartmentalisation, etc.). Symobo contests this on 24 October 2022 in a lengthy letter: it shows that its plans do refer to the 'fire compartmentalisation plan' which was only available after the erratum, and that its offer includes wheelchair-accessible toilets that were not requested in the first version. On 28 October 2022 the city withdraws its first award decision 'due to the risk of annulment'. There follow further letters from Symobo (3 and 10 November 2022, with Article 66 clarifications) and a counter-letter from Degotte (9 November 2022, listing renewed objections on ventilation, fire compartmentalisation, glazing, foundations, and additionally challenging the signing authority of Symobo's signatory). Second award decision on 22 December 2022: the city now awards to Symobo, with the motivation that 'after analysis of the documents provided, no irregularity can be identified' and that 'both offers are regular'. Degotte seeks suspension under extreme urgency. The Council of State accepts the second plea (motivation duty): the city fails to show that it actually performed a new regularity check after the withdrawal. Three elements weigh against it. One: the motivation refers to 'justification letters' from Symobo (3 and 10 November) and from Degotte (of 3 October — predating the first award decision!), but not to Degotte's crucial counter-letter of 9 November 2022 that specifically laid out the ventilation and compartmentalisation concerns. Two: there is a 'confusion' between what the city claims in its observations note to the Council (it would have taken the 9 November letter into account, even referring to a Degotte letter of 6 November which appears nowhere in the file) and what the contested decision itself says. Three: the formulas used ('after analysis of the documents provided, no irregularity can be identified') are 'stereotyped formulas' that do not show that the authority itself, on its own analysis and not merely on Symobo's declarations, verified that the offer was based on the second version of the tender documents. The Council holds that after withdrawing a first award decision grounded on substantial irregularity, the authority is bound to explain concretely in its new decision why it now concludes regularity. 'Stereotyped formulas' do not suffice. Suspension is ordered.
Why does this matter?
This is an important ruling for two types of readers. For bid managers who believe a competitor's offer is irregular: it pays to build a documented dossier with evidence before the award decision, in a written notice that automatically becomes part of the file the authority must address. Here, Degotte's 9 November 2022 letter was precisely why the Council found the motivation 'insufficient' — that letter had to be addressed concretely, and it was not. A well-documented counter-attack forces the authority to surface the grounds of its decision. For contracting authorities: as soon as you withdraw an award decision to then award to the opposing party, you are not free to do so with the same stereotyped formulas you used before withdrawal. The withdrawal creates the 'legal fiction' that the first decision never existed, but the factual doubts that led to the withdrawal still exist. You must motivate why you now reach a different conclusion — point by point — and not merely refer to 'justification letters' from the party you favour. Admittedly, this is a 'second-round' motivation duty, not a classical one. But the Council makes clear it is real and strict.
The lesson
If you withdraw an award decision following challenges to a bidder's regularity and you want to decide again — possibly in the same direction, but especially in the opposite direction — write a 'point-by-point' motivated analysis: what were the doubts that led to the withdrawal, what did you newly investigate, what conclusion do you draw on the basis of your own verification (not just on the defence of the favoured party), and explicitly address every written observation the other candidate submitted between the two decisions. Stereotyped formulas such as 'after analysis of the documents provided, no irregularity can be identified' are worth a UDN suspension.
Ask yourself
If your file contains: (1) a first award decision motivated differently from (2) a second award decision for the same contract, do your two decisions have an explainable cause-and-effect relationship? Have you explicitly addressed every written observation from a non-favoured third party that was filed between the two decisions in the motivation? Have you been able to ground your conclusion on regularity on your own verification of the file and not solely on the self-defending statements of the favoured bidder?
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 →