A withdrawn award decision legally no longer exists — so there is no 'change of position' to motivate
The Council of State rejects the suspension of a second Infrabel award decision, ruling that a contracting authority that withdraws its first decision and re-examines the offers does not have to explain why it now reaches a different conclusion — the first decision retroactively disappeared upon withdrawal and cannot serve as a reference point for a 'change of position'.
What happened?
Infrabel issued a framework agreement in September 2022 for 'support for coordination and drafting of the annual report' under a negotiated procedure without prior publication (art. 124 of the 2016 Procurement Act). Four firms were invited on 15 November 2022; two submitted offers: SRL Double Épice and SRL Companywriters.be. On 19 January 2023 the contract went to Double Épice. Companywriters.be filed a suspension under extreme urgency. Before the hearing, Infrabel withdrew its decision and announced a new examination. On 6 March 2023 Infrabel issued a new award decision — again in favour of Double Épice. In the first decision, Infrabel had stated under the sub-criterion 'experience in team coordination (10 years required, 5 points)' that Double Épice's consultant 'mentions experience in team coordination but without specifying whether it reaches 10 years'. In the new decision, however, Infrabel wrote that 'in her offer, Ms Faidherbe attests that she does have at least 10 years of team coordination experience'. Companywriters.be argued this was an unexplained 'change of position': same authority, same offer, radically different conclusion without justification. The Council of State rejected the argument. Withdrawal of an administrative act has the same retroactive effect as annulment: the withdrawn act is deemed never to have existed. Therefore there can be no 'change of position' relative to an assessment in an act that has legally disappeared. The contracting authority is in principle no longer bound by the reasons on which the withdrawn decision rested and may make a different assessment in a new decision — without a heavier motivation requirement. Furthermore, the new decision did explain that the first analysis had been 'too formalistic' and that the CV showed Ms Faidherbe had been head of communications at CHU Liège (2006-2011), FANC (2011-2015), and STIB ad interim in 2018 — totalling 10 years and 8 months. The complaint of manifest error of assessment, raised only at the hearing, was rejected as too late and unfounded. The single ground was not serious; suspension denied.
Why does this matter?
This ruling provides a very practical rule for the common situation where a contracting authority, after a suspension request, withdraws its decision and re-examines the offers. The new decision can reach a different result based on a different assessment, without the authority having to justify the difference with the first decision. For losing bidders, the legal argument 'you said this first and now you say that — explain' does not work against a withdrawn decision. For contracting authorities, the message is the opposite: a withdrawal offers a real tabula rasa, provided the new examination is materially complete and the new decision is fully reasoned in itself. The ruling also warns against developing new grievances only at the hearing in extreme urgency — what could have been seen in the first round of offers belongs in the application.
The lesson
If as a contracting authority you face a suspension request and feel that your award decision is vulnerable, know that you have a strong remedial card: withdraw the decision and conduct a fully new examination. The new examination may reach a different result, even on the same offers, and you do not have to explain why you now think differently. What you must do: the new decision must contain a full, autonomous motivation as if the first never existed. Don't refer to the first decision; explain your own reasoning fully. Conversely, as a losing bidder, if you read a second decision with different conclusions: don't build your ground around 'they changed their mind', because that argument is dead. Look for substantive errors in the new decision itself.
Ask yourself
Does your new award decision — after withdrawing the first — contain an autonomous motivation that goes through each sub-criterion again and substantiates it independently, without referring to 'the previous decision' or 'after re-examination'? Concrete threshold: if you remove the first decision, can a losing bidder understand from the second decision alone why they lost? If not, rework the motivation.
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 →