Deciding not to negotiate in a competitive procedure with negotiation: only if you concretely prove the bids meet your needs
The Council of State suspends the decision of the municipality of Auderghem to discard an architects' team's bid for exceeding a page limit in a competitive procedure with negotiation, because the municipality cannot show anywhere that it actually assessed whether the regular bids met its needs before deciding not to negotiate.
What happened?
In late 2021 the municipality of Auderghem launches a competitive procedure with negotiation for the appointment of a multidisciplinary architectural team to design and supervise the renovation of the town hall and the social welfare office. A complex contract under article 38, §1, 1°, c) of the 2016 Procurement Act: a building with multiple functions (municipal services, social welfare, libraries, toy libraries), heritage that must be preserved while meeting modern standards (energy performance, accessibility), a subsoil with groundwater flows, and functional interaction with the neighbouring cultural centre. The procedure is published EU-wide. The notice appears on 5 November 2021 in the Belgian Bulletin of Tenders, on 10 November in the EU Official Journal. Three corrigenda follow: on 10 November the specifications are added (a selection guide and an attribution CSC), on 1 December environmental annexes are added, and on 2 December the deadline is moved to 14 December 2021. 34 candidates apply; 5 are selected, including Pierret and Beal & Blanckaert. On 7 December 2022 all five submit a bid. On 16 January 2023 the municipality draws up a 'Bid Analysis Report - Regularity Part'. For Pierret and Beal & Blanckaert: irregular. Reason: the specifications require an intent note of maximum 20 A3 pages, and the annexes may not contain parts of the note that exceed those 20 pages. The applicants had 'budget management and planning methodology' on page 20 but the financial analysis and the timeline itself were in annex. The municipality treats this as a substantial irregularity under article 76 of the 2017 Royal Decree on Award — it would 'discriminatorily favour' them over the other bidders who stayed within the page limit. On 31 January 2023 the College declares the bid irregular. On 17 February 2023 Pierret and Beal & Blanckaert turn to the Council of State in extreme urgency. Their core argument: in a competitive procedure with negotiation, bids MUST be negotiated unless the contracting authority indicated in the notice itself that it reserves the right not to. Article 38, §5 of the 2016 Procurement Act is formal on this point: the option must be mentioned 'in the contract notice'. Here it is NOT — the box is not ticked. The CSC does mention it, in article I.8.11, first paragraph: 'The contracting authority reserves the right not to negotiate if it considers that the first bids submitted enable it to award the contract.' But according to the applicants this is not enough — the statutory text expressly speaks of the notice. Moreover, the same CSC clause's second paragraph: 'the contracting authority WILL GIVE, before opening negotiations, the bidders the opportunity to correct any irregularities, where applicable substantial, affecting their non-final bids.' The applicants point to the future tense 'will give' — a commitment, not a possibility. The municipality should therefore have allowed them to integrate the three pages of tables into their 20-page note (which the applicants demonstrate is feasible). The municipality defends on multiple fronts. The CSC is added to the notice via a corrigendum and is materially part of the notice. The transparency objective is met. Bidders cannot prove the bids do not meet the authority's needs. The decision rests on a reasonable assessment. The Council of State follows none of these defences. First the framework: article 38, §5 of the 2016 Act — read in the light of the parliamentary preparatory works — expresses that 'holding negotiations is the rule, while the option not to organise them is the exception, which can only rest on an objective reason'. The conditions for this exception must be set out and announced in the contract documents, and 'the application of this exception must be strictly interpreted and applied'. Second, the second paragraph of CSC clause I.8.11 — committing the authority to provide a regularisation opportunity before negotiations — does not in its 'clear terms' allow the conclusion that the municipality was free to grant or refuse regularisation. The defence that 'will give' merely expresses a possibility would, according to the Council, expose the municipality to 'reproach for breach of the transparency principle'. Third — the pivotal point: the first paragraph of clause I.8.11 (no negotiation 'if the first bids enable awarding') is in itself NOT contrary to article 38, §5. The verb 'consider' does not as such exclude the existence of an 'objective reason' — PROVIDED the contracting authority 'has duly established that the regular bids submitted actually meet its needs as set out in the specifications'. And that is exactly where things break down. Nothing in the contested decision or in the administrative file allows the conclusion that the municipality actually assessed the regular bids on that quality. The reasoning is limited, for the three bids deemed regular, to noting that they 'are accompanied by an intent note of maximum 20 pages containing all required information' — a mere regularity statement, not an examination of whether those bids meet the authority's needs. The municipality argues that this analysis need not appear in formal motivation and that absence of mention does not mean it did not happen — but it identifies no document of the administrative file showing that it did. Result: the exception not to negotiate was NOT regularly exercised. The applicants' bid should not have been discarded without giving them the opportunity to regularise and participate in negotiations. The plea is serious. The Council suspends the contested decision and orders immediate execution of the judgment. Certain documents remain confidential at this stage. Costs reserved.
Why does this matter?
For anyone bidding in a competitive procedure with negotiation: this judgment is gold. The contracting authority cannot simply decide not to negotiate by relying on a generic CSC clause. Three cumulative conditions must be met: (1) the option not to negotiate must be properly announced in the contract documents, (2) an objective reason must exist and connect to the needs, and (3) the authority must be able to demonstrate in its file that it actually assessed the regular bids on quality/adequacy before deciding not to negotiate. A pure regularity analysis is NOT enough. For contracting authorities looking to use the exception, document concretely how you established that the regular bids cover your needs. An internal analysis in the administrative file (meeting minutes, evaluation notes, comparison table with needs) suffices — but something must be in that file. Silence is fatal. And a key regularisation point: if you write in the CSC 'the contracting authority WILL GIVE the opportunity to correct', that is a commitment. The future tense cannot afterwards be reinterpreted as a discretionary choice — that would breach the transparency principle.
The lesson
For bidders: read both the notice AND the CSC carefully on the negotiation clause. If the notice itself does not tick the box reserving the right not to negotiate, while the CSC does, that may be a ground for challenge — though that alone is not enough (the Council here held that the CSC clause was in itself valid). The stronger ground is: can the authority prove it actually established that the regular bids meet its needs? In an extreme-urgency or annulment action, request the full administrative file and check for evaluation notes or needs analysis. If there are none, your plea is serious. For contracting authorities: if in practice you do not want to negotiate after the first bids, ensure (1) a correct mention in the notice itself, (2) an objective reason linked to the contract complexity and nature, and (3) a documented internal needs analysis before the contested decision. Never write 'will give' (future tense) in a regularisation clause if you want to retain freedom — use 'may'.
Ask yourself
Open the last CSC for which you bid in a competitive procedure with negotiation. Find the clause on negotiations. Ask yourself: did the authority tick the box in the notice itself? If not, and if it nonetheless awards without negotiations or discards your bid without a regularisation chance: request the full administrative file and check for a documented needs analysis of the regular bids. If there is none, you have a serious ground for suspension.
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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 →