A contracting authority can cancel and restart a procedure — even if that costs you a near-guaranteed award
The Council of State dismisses Theis Marcel's challenge against SOFICO: under Article 85 of the Belgian procurement law, a contracting authority has broad discretion to cancel and restart a procedure, even after two previous awards have been suspended and a competitor is next in line.
What happened?
This judgment is the final chapter of a three-year saga concerning road-cleaning services in the Ciney district, tendered by SOFICO (the Walloon road-infrastructure company). After a December 2020 call for tenders with seven lots (price being the sole criterion), SOFICO awarded lot 5 to Eurogreen in August 2021. Theis Marcel — who had submitted the highest price — obtained a suspension via judgment no. 251.696 (September 2021) because the price-verification motivation was inadequate: Eurogreen invoked Joint Committee 145 (Parks and Gardens) wage scales while having signed an annex referring to Joint Committee 124 (Construction). SOFICO withdrew the award and re-awarded Eurogreen in June 2022, only to be suspended again in July 2022 (judgment no. 254.278), this time because the offer itself was prima facie substantially irregular. In August 2022, SOFICO took the decisive step: it cancelled the procedure altogether and relaunched it in March 2023 with a modified specification that removed the problematic annex. On 29 September 2023, lot 5 was awarded to Entreprises Bruno Sandri, with Theis Marcel again the most expensive bidder. Theis Marcel then filed an extreme-urgency challenge based on three grounds: the 'clear act' doctrine, alleged breach of the authority of res judicata of the earlier suspension judgments, and insufficient motivation of the competition rationale. The Council of State rejected all three. Its core reasoning: Article 85 of the procurement law explicitly allows a contracting authority to abandon the award or restart the procedure. This discretionary choice is not limited to exceptional cases or serious grounds, nor does it depend on the legality of prior phases. Judicial review remains marginal — only manifest error of assessment can overturn such a choice. The earlier suspension judgments established the irregularity of Eurogreen's offer but did not oblige SOFICO to award to Theis Marcel. Restarting the procedure to broaden competition was deemed a legitimate objective.
Why does this matter?
This judgment confirms a hard truth for bid managers: winning a suspension does not guarantee an award. A contracting authority can cancel the whole procedure and restart it, even when you are next in line. Article 85 grants very broad discretion, which courts can only marginally review. A suspension judgment's authority of res judicata extends no further than what it explicitly decides — noting an irregularity does not require the next bidder to be awarded.
The lesson
If you have won an extreme-urgency suspension but the authority then decides to cancel and restart: do not attack that decision on the 'clear act' doctrine or on res judicata — those arguments will fail. The only viable route is to show that the cancellation rests on a manifest assessment error or on factually or legally inadmissible grounds. In practice: target the motivation of the cancellation itself, not what the previous judgments 'ought to have imposed'.
Ask yourself
After a won suspension: has the authority within a few months (1) issued a new award, (2) withdrawn the procedure and relaunched it, or (3) done nothing? Only scenario (1) makes your 'next in line' position practically useful; in scenario (2) you must attack the motivation of the restart itself, not the restart as such.
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 →