If you first declare a bid irregular and then accept it anyway, you must say more — not less
The Council of State suspends the award of six artificial football pitches to Sportinfrabouw because the municipality of Beveren, after having declared two bids substantially irregular, changed its mind without properly justifying that reversal.
What happened?
The municipality of Beveren tendered works for six artificial football pitches on different sites, with price as sole criterion. The specification contained strict technical minimums for the shock pad (shock absorption 40% ±10%, vertical deformation 7 ±10%) and the turf carpet (particle size range 0.8–2 mm for cork infill). The specification was explicit: 'WE DO NOT TAKE THE ±10% INTO ACCOUNT! ONLY THE PRODUCT IDENTIFICATION TEST RESULT COUNTS. Otherwise the bid is deemed void.' In the first examination report of 22 August 2023, Sportinfrabouw's and another bidder's (S.) offers were declared substantially irregular for failing the shock absorption and deformation requirements. The contract was awarded to Lesuco on 29 August 2023 as the economically most advantageous regular bid. Sportinfrabouw and S. then submitted objections. Sportinfrabouw argued its shock absorption was actually 43% (within the 40% ±10% margin) and that the municipality had misread the figures. It also pointed out that Lesuco's cork infill had a particle size range of 0.8–2.5, above the required 0.8–2. On 18 September 2023, the municipality withdrew its original award and announced a 'thorough and diligent investigation'. A new examination report then declared all four bids regular, with a laconic footnote: 'In the absence of priority rules in the specification regarding the documents substantiating the technical specifications, and to safeguard the principles of competition and equality, the Contracting Authority concludes regularity.' The new ranking: Sportinfrabouw (€3,260,155.57), S. (€3,372,303.17), Lesuco (€3,545,691.76), TV S.S.-N. (€3,573,732.82). In a second decision of 18 September 2023, Beveren awarded the contract to Sportinfrabouw. When notifying Lesuco, the municipality mistakenly included a draft version showing that an earlier version still considered Lesuco and S. substantially irregular. Lesuco sought extreme-urgency suspension and prevailed. The Council started from settled case law: if the administrative file shows regularity was examined without 'particular problems arising', a concise motivation suffices. But here particular problems clearly had arisen: contradictory test results, varying values depending on test method, and a withdrawn first decision contrasting the current reversal. These 'particular circumstances' required a more detailed formal motivation. The contested decision limited itself to one sentence: 'after diligent examination of all submitted documents they meet all minimum requirements'. For Lesuco, the municipality's volte-face was incomprehensible. The 'absence of priority rules' footnote moreover only appeared with non-substantial irregularities — not with the substantial norms underlying the original rejection. The municipality raised further grounds in its response before the Council, but the Council reminded: formal motivation must be in the decision itself, a party should not have to wait for a legal remedy to discover the underlying grounds. Suspension granted.
Why does this matter?
This judgment gives competitors a powerful tool when a contracting authority reverses its regularity assessment. Rule: a reversal is itself a 'particular circumstance' requiring detailed motivation. One sentence won't do. Crucially, what the authority adds as explanation during appeal does not count. If you are on the losing side of such a reversal, your chances of suspension are real.
The lesson
When an authority first declares a bid substantially irregular and later accepts it anyway: read the second decision word by word. Does it make the reversal understandable? Are the original defects addressed explicitly? Is the 'why now yes' concretely substantiated? If not, you have a serious suspension ground.
Ask yourself
Has the authority reversed its regularity assessment within the same procedure? Does the new decision concretely state (1) which test results are now accepted, (2) why the earlier assessment was wrong, and (3) how this respects equality vs. other bidders? If one of these three elements is missing, you have a ground.
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 →