An award decision is not a contract — until closing, the authority can always backtrack
The Council of State confirms that the Flemish Region was allowed to withdraw its award decision to Zidis five months after notification, because the contract had not yet been concluded and Article 85 of the Public Procurement Act 2016 gives the authority the power to halt the procedure at any time before closing — regardless of irregularity.
What happened?
In April 2021, the Flemish Roads and Traffic Agency (AWV) launches an open procedure for a framework agreement for video production and post-production for the communication around its projects. Specifications PCO/COM/2021/3, two award criteria: price (40 points) and quality (60 points), with three sub-criteria under quality. Twelve companies bid. BV Zidis comes out first, with a total price of 103,901.20 euros VAT included. Zidis applies a VAT rate of 6% — an exception rule that according to her applies because she transfers 100% of the copyrights. AWV asks for clarification, gets the answer, and adopts it without verification. On 10 September 2021, the contract is awarded to Zidis. Zidis receives a notification letter on 22 September, with the explicit mention: 'This notification does not create any contractual obligation.' But then things start shifting. Other bidders react to the award report and point out shortcomings: the quality criterion was very summarily motivated ('in order, classical' for every bidder, while the scores varied from 6 to 8 out of 10), and the VAT rate of 6% was not correct in their view (or had to apply to them too). At the end of September, AWV decides to withdraw the award decision. On 14 February 2022 — five months after the original award — that withdrawal is formally pronounced, based on two reasons: defective motivation of the quality criterion and incorrect VAT rates that should have been corrected pursuant to Article 34, §2 of the Royal Decree on Awarding. Zidis does not accept this. On 15 April 2022, she files an annulment appeal. Two weeks earlier, on 7 April 2022, AWV had meanwhile also decided to definitively not award the contract — Het Facilitair Bedrijf had in the meantime a similar framework agreement running from which AWV could simply procure. Zidis argues: the general doctrine of withdrawal requires that a rights-conferring administrative act can only be withdrawn within 60 days, and then only if it is affected by fraud or a gross and manifest irregularity. Neither is the case here. The award notification has according to Zidis already created rights. The Council of State does not follow that reasoning. First finding: an award decision is in itself not yet the conclusion of the contract. Closing only occurs under Article 88 of the Royal Decree on Awarding 2017 through 'notification of the approval of his offer to the contractor' — an active act that never took place here. Second finding, and that is crucial: Article 85 of the Public Procurement Act 2016 explicitly states that 'following a procedure does not entail an obligation to award or to conclude the contract'. The contracting authority may even after an award decision still decide not to conclude or to restart the procedure — without conditions regarding legality. That necessarily implies the power to withdraw the award decision itself. In short: as long as the contract has not been concluded, the contracting authority can lawfully withdraw the award decision without having to prove illegality. The general 60-day period of the classical doctrine of withdrawal does not apply here. The appeal is dismissed. Zidis pays 200 euros in registration fees, 22 euros in contribution and 770 euros in procedural indemnity.
Why does this matter?
For bidders this is hard news: getting an award decision in your hands is no guarantee. Until the official notification of approval of your offer (the 'closing'), the contracting authority can still backtrack — even months later, and even without irregularity in the award decision itself. The practical consequence: do not invest in preparatory work, subcontractor contracts or personnel planning based solely on the award notification. For contracting authorities this judgment provides broad room for manoeuvre: even if your award decision was not ideally motivated in hindsight, or if a better solution arises in the meantime (such as the Het Facilitair Bedrijf framework agreement here), you can still intervene up to the moment of closing.
The lesson
As a bidder: an award decision is a nice intermediate step, not a final destination. Wait with investments, subcontracting and personnel commitments until you have received the formal notification of approval of your offer (the closing). As a contracting authority: Article 85 of the Public Procurement Act 2016 gives you up to the moment of closing a broad withdrawal power that overrides the general doctrine of withdrawal — use it to correct motivation defects or to seize opportunities.
Ask yourself
After my award, did I receive a formal notification of approval of my offer, or only the communication that my offer was chosen? Without the former there is no contract yet and the authority can still backtrack.
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 →