Rejection of challenge against termination of Roosdaal childcare procurement — wish to re-evaluate debtor risk after three years rightly qualified as substantively irregular reservation — uncertainty about commitment suffices regardless of limited financial impact — specifications did not provide for regularisation — withdrawal of award decision undoes prior regularisation
The Council of State rejected 3WPlus Kinderopvang's urgent suspension request against the municipality of Roosdaal's decision to terminate the childcare procurement, ruling that the tenderer's stated wish to re-evaluate the debtor risk after three years was rightly qualified as a reservation rendering the commitment uncertain and constituting a substantive irregularity, that the limited financial impact was irrelevant, that the specifications did not provide for regularisation of substantive irregularities, and that withdrawal of the earlier award decision meant the prior regularisation was deemed never to have existed.
What happened?
Roosdaal tendered childcare services via negotiated procedure with prior publication. Two tenders were received. The incumbent (3WPlus) included a wish to re-evaluate debtor risk after three years. This was initially regularised, but after Roosdaal withdrew its award decision, it reassessed both tenders as substantively irregular and terminated the procedure. The Council found: the wish constituted a reservation on an essential condition (price), making the commitment uncertain; limited financial impact is irrelevant; the specifications did not allow regularisation; withdrawal of the award decision freed the authority from prior assessments; the first ground (both tenders irregular) was sufficient on its own.
Why does this matter?
A seemingly innocuous statement in a tender — like wishing to re-evaluate a risk — can constitute a substantive irregularity when it concerns an essential condition. The uncertainty about the commitment is decisive, not the financial impact. Regularisation of substantive irregularities requires explicit provision in the specifications. Withdrawal of an award decision frees the authority to reassess.
The lesson
Tenderers: do not include wishes or suggestions that could be read as reservations on essential specifications. Even if financially minor, the uncertainty over your commitment is decisive. Authorities: ensure specifications explicitly state whether substantive irregularities can be regularised. After withdrawal, you may reassess with stricter conclusions.
Ask yourself
Does your tender contain statements that could be read as reservations on essential conditions? Does the specification explicitly provide for regularisation of substantive irregularities?
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 →