Bruxelles Environnement invented a 'competitive advantage' the law does not recognise — the Council suspends the re-tendering of the climbing-rock case
The Council of State suspends Bruxelles Environnement's decision to abandon the award and re-tender the 'Aménagements paysagers' contract for Anderlecht's Colombophiles park, because the contracting authority committed three legal errors: a deviation from the specifications was wrongly called a 'variant', an irregularity was declared substantial under a non-existent category 'competitive advantage', and a material specification (resin concrete) was wrongly treated as a brand reference under art. 53.
What happened?
In late 2022 Bruxelles Environnement awarded the landscape works for Anderlecht's Colombophiles park (Lot 1) to the Melin/Estate and Landscape Management consortium. The specifications mandated 'resin concrete' for the playground's climbing rock — a composite material that mimics natural stone. Krinkels, a losing bidder, challenged the award and on 31 March 2023 obtained a suspension (judgment 256.185). Bruxelles Environnement then withdrew the award and announced re-tendering on adjusted specifications allowing all materials except a few excluded for environmental or safety reasons. Two grounds underpinned the re-tendering: first, the bidders had submitted 'substantially irregular' offers because they didn't propose resin concrete — qualified as a 'forbidden variant' and a 'competitive advantage' (lower price by ignoring the specifications); second, the resin concrete specification itself allegedly violated art. 53 of the public procurement law (ban on brand or manufacture references). The Council rejected all three grounds. A 'variant' under art. 2, 53° is an 'alternative method of conception or execution' actively proposed; a bidder simply offering another material without claiming an alternative method is just non-compliant — not a variant. 'Competitive advantage' is not in the closed list of art. 76 § 1 third subparagraph of the 2017 placement decree, which lists only four categories: discriminatory advantage, distortion of competition, impossibility to evaluate or compare offers, and non-existent/incomplete/uncertain commitment. The authority illegally fused 'discriminatory advantage' and 'distortion of competition' into 'competitive advantage'. As to art. 53 § 4: it forbids only references to 'particular manufacture or origin' or to 'a brand, patent, type, origin or specific production' that would favour or exclude undertakings. 'Resin concrete' is a material category, not a brand. The Council suspends with immediate execution.
Why does this matter?
This judgment shows how a contracting authority that loses its first award tends to invent new grounds during re-tendering, and crosses legal limits. For bidders fresh from a first suspension: a re-tendering decision must be motivated as carefully as an award decision. The three corrections each reaffirm a basic notion that practice can blur — variant is a specific legal figure, not a synonym for deviation; substantial irregularity is a closed category, not an open concept; and the brand prohibition of art. 53 targets brands and specific manufacture, not generic material specifications.
The lesson
Contracting authorities that lose an award in extreme urgency and want to re-tender must build the re-tendering decision carefully with clean grounds. Losing bidders should not only watch the original award decision, but also what happens after a suspension — a second decision pushing them out again is also challengeable.
Ask yourself
When an irregularity is called 'substantial', test it literally against art. 76 § 1 third subparagraph of the 2017 placement decree: does it create a DISCRIMINATORY advantage? A DISTORTION of competition? Does it make the offer non-comparable or the execution uncertain? A 'competitive advantage' (such as a lower price by ignoring specifications) is on its own none of these four — more is needed.
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 →