Urgent suspension request by Faway against new award of school fruit and vegetable supply contract to Frescho rejected — non-compliance with chicory seasonality constitutes a substantial irregularity — chicory has a natural production cycle despite year-round forcing possibility
The Council of State rejected Faway's urgent suspension request against the Walloon Region's new decision to award school fruit and vegetable supply lots to Frescho, ruling that the authority could, without manifest error, consider chicory has a natural production cycle and that proposing delivery in June — outside the authorized September-March period — constituted a substantial irregularity nullifying the bid, as product seasonality was an essential market requirement.
What happened?
The Walloon Region tendered fruit and vegetable supply services for schools under the EU school program. The tender documents specified authorized distribution periods per product based on seasonality. Chicory was only authorized from September to March. Faway proposed delivering chicory in June. A first award decision was suspended by the Council for insufficient motivation of the irregularity's substantial character. The Region withdrew and issued a new properly motivated decision. Faway's first ground (arguing the Walloon seasonality regulation was invalid) was rejected: the EU regulation allows either health authority approval or association, and the authority could reasonably find chicory has a natural cycle despite year-round forcing possibilities, especially given the program's educational objectives. The second ground (arguing seasonality wasn't a substantial requirement) was also rejected: the new decision adequately motivated why seasonality was essential. In an open procedure, the intangibility principle prevents inviting tenderers to swap products in their delivery calendar.
Why does this matter?
Product seasonality under EU regulation 1308/2013 can be an essential requirement whose breach constitutes a substantial irregularity. Contracting authorities have margin to define seasonality periods even for products technically producible year-round. When a first decision is suspended for motivation deficiency, a properly motivated new decision can cure the defect.
The lesson
Tenderers: strictly respect seasonality calendars in tender documents even if you believe a product is available year-round. Non-compliance can nullify your bid without regularization opportunity in open procedures. Contracting authorities: properly motivate why seasonality non-compliance constitutes a substantial irregularity.
Ask yourself
Does your delivery calendar fully respect the seasonality periods in tender documents? Have you verified each product's eligibility for its proposed delivery period?
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 →