Citing the winner's patent report is not a motivation — even if the report is confidential
The Council of State suspends the award by AGSO Knokke-Heist because the contracting authority dismissed a substantiated patent objection from a losing bidder by merely stating that the winners 'confidently affirm' their offer infringes nothing — without explaining why it found their report more convincing.
What happened?
The Autonomous Municipal Company for Urban Development Knokke-Heist (AGSO) launched a framework agreement for supplies for water mains and sewerage construction 2023-2026, divided into 14 lots, in open procedure with price as sole award criterion. For lots 3 (meter supports complete) and 4 (fittings – meter supports) AGSO awarded on 22 May 2023 to bv Isiflo and nv Evodis respectively. The losing NV Hydroko sent a complaint letter on 2 June: it claimed to hold European patent EP1834119 on a synthetic-plug shut-off valve and that the winning offers presumably infringed it. Two patent attorney reports were attached. On 5 June AGSO withdrew its award for lots 3 and 4 to investigate the complaint, expressly invoking 'the principles of good administration'. On 7 June it requested clarification from Isiflo and Evodis. On 20 June Isiflo provided a report from an independent IP research bureau concluding no infringement; Evodis joined that position. On 30 June AGSO awarded again to the same parties — the contested decision. In its motivation AGSO merely stated that the report contained 'detailed technical arguments and legal substantiation' and that Isiflo and Evodis 'confidently affirm that their offer does not infringe patent EP1834119'. Hydroko filed an extreme-urgency suspension before the Council of State, alleging breach of the formal and substantive duty to state reasons. AGSO defended itself with four arguments: (1) reasons for reasons are not required, (2) the documents were confidential under article 10 of the protection act, (3) patent disputes belong before the Brussels enterprise court, and (4) the patent issue concerns the performance phase, not the award. The Council swept all four aside. On motivation: a mere reference to 'a report with detailed technical arguments' and the bidders' own assertion of confidence that there is no infringement is empty and does not enable Hydroko to assess whether to challenge the decision. On confidentiality: the contested decision itself contained no reference to confidentiality, no balancing between the duty to motivate and trade secrets, no explanation of why a non-confidential summary would be impossible — article 10 was only invoked in the post-litigation note. On jurisdiction: the Council does not need to determine whether infringement actually exists, only whether the award decision rests on cogent grounds. On the performance phase: by withdrawing its first award AGSO had itself committed to substantively examining the regularity of the offers and could not now hide behind 'performance'. The plea was serious; the suspension was granted.
Why does this matter?
When a losing bidder formulates a substantiated complaint — especially around intellectual property or any matter for which the contracting authority itself withdraws its first award to investigate — the motivation bar rises significantly. It is no longer enough in the second decision to point to 'a report from the winner' or the winner's own statement that nothing is wrong. The authority must explain why it finds the winner's arguments more convincing than the complainant's. Confidentiality is no shield: article 10 of the protection act requires an active balancing — set out in the award decision itself, not in the note to the court. For bidders this means: when a contracting authority withdraws after your complaint and re-awards to the same party with thin motivation, you have a strong ground.
The lesson
If as a contracting authority you withdraw your first award decision to investigate a complaint, you commit to a heightened duty to motivate the second decision. References to 'the winner's report' or its own statement of confidence that nothing is wrong do not suffice. State per complaint point: what did the complainant argue, what did the others put forward, and why do you find the latter more convincing? If you want to invoke confidentiality, perform the balancing act in the decision itself and explain why a non-confidential summary is impossible.
Ask yourself
Did you withdraw your first award to investigate a complaint? Check that your second decision addresses each concrete complaint point and explains why you reject it. Does your motivation only reference a confidential report or the winner's own assurance? Then your decision is vulnerable to suspension. Make the balancing explicit in the text — invoking confidentiality after the ruling is too late.
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 →