ESPPW: renunciation after prior suspension — five grounds insufficient, reinforced motivation required
The Council suspends the French Community's decision to renounce awarding an external prevention and protection service contract, finding all five grounds for renunciation inaccurate, irrelevant or insufficiently motivated in a context requiring reinforced motivation.
What happened?
The French Community launched a negotiated procedure with prior publication for an ESPPW (External Service for Prevention and Protection at Work) for over 7,000 staff, as a 4-year framework agreement starting 1 January 2024. Two offers were submitted: COHEZIO (incumbent) and CESI. On 10 November 2023, the contract was awarded to CESI. COHEZIO challenged this and by ruling no. 258.355 of 8 January 2024, the Council suspended the award, finding CESI's offer prima facie substantially irregular and that the authority could not renounce the contract given its legal obligation to have an ESPPW by 1 January 2024. Following this ruling, the authority withdrew the award and on 19 January 2024 took two decisions: extending the previous contract with COHEZIO for one year (until 31 December 2024) — at COHEZIO's own request — and renouncing the disputed contract. The renunciation relied on five grounds. The Council found the first branch of the plea (res judicata) not serious: the previous ruling used the past tense and the contract extension substantially changed the factual context. The second branch — challenging each of the five grounds — was serious. First ground (expiry of offer validity period): inaccurate, as offers remained valid until 31 January 2024 after applying the suspension under Art. 8, §2 of the 2013 Act. Second ground (need for urgent new analysis): not relevant, as the extension until 31 December 2024 provided ample time. Third ground (impossibility of reducing duration or postponing start): insufficiently motivated, no concrete legal rule identified. Fourth ground (need to revise tender documents): insufficiently motivated in a reinforced motivation context. Fifth ground (wish to broaden competition): suspect without further explanation, given the authority had initially been content with two offers. Suspension ordered.
Why does this matter?
This ruling is fundamental on whether a contracting authority can renounce a contract after a prior judicial suspension. It confirms that the authority in principle recovers its discretionary power (Art. 85 of the 2016 Act), but that in particular circumstances — one regular offer, a prior ruling suggesting award to that offer, changed context — reinforced motivation is required. Each ground must individually be accurate, relevant and admissible.
The lesson
Renouncing a contract after a suspension ruling is possible, but not at any cost. Verify your calculation of the offer validity period (mind the suspension under Art. 8, §2 of the 2013 Act), do not rely on urgency you have resolved through an extension, concretely identify any legal obstacles invoked, explain what revising tender documents would actually achieve, and substantiate the wish to broaden competition if you initially accepted few offers.
Ask yourself
Are my grounds for renunciation each individually accurate, relevant and sufficiently substantiated? Have I correctly calculated the offer validity period accounting for the suspension? Can I concretely identify the legal rule that would prevent postponing the contract start date? Is my wish to broaden competition substantiated beyond merely noting that only one regular offer remains?
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 →