Admitting a 'misjudgment' in an email costs WattElse a wind farm project — even though this is not a public procurement
The Council of State rejects WattElse's appeal because its offer failed to respect the bestek's mandatory 1000-metre buffer to existing dwellings, and because the bidder itself admitted to a 'misjudgment' in a 20 May 2020 email — losing all standing to challenge the award to Eneco-Engie.
What happened?
The city of Houffalize, the municipality of Gouvy and the OCMW of Bruges jointly wanted a wind farm on their land between Dinez, Tailles and Mabompré. They argued this was not strictly a public procurement — they were not procuring works or services, only granting 30-year surface rights. Still, they ran a 'call for projects' with a bespoke bestek. One essential requirement: a 1000-metre minimum distance from any residential zone or any permitted standalone dwelling. On 8 April 2020, eleven developers submitted offers. Three were shortlisted: Eneco-Engie, WattElse and Luminus. During the 15 May 2020 hearings WattElse hit a wall: in its plan for the 'Mabompré' zone, camping C&P (west of the E25 motorway) and Hôtel L'Ermitage (east) were located within 1000 metres — recreational zones that WattElse had assumed were uninhabited. In an email of 20 May 2020 WattElse wrote: 'It is probably a misjudgment ... We understand that the municipality wants the turbines at least 1000 metres from those zones. WattElse is willing to maintain a new buffer, meaning the number of turbines would drop from 8 to 6.' That sentence proved fatal. The analysis report of 29 May 2020 stated WattElse 'insufficiently respects the bestek requirements'. On 3 June 2020 Houffalize selected Eneco-Engie. WattElse appealed. The interim suspension was rejected by judgment 248.148; this final ruling of 11 April 2024 also dismisses the annulment claim. The Council first holds that the operation is neither a public procurement nor a concession under the law of 17 June 2016. But that does not save WattElse. Under general administrative law (articles 14 §1 and 19 of the coordinated laws on the Council of State), the same standing requirements apply: a bidder who admits to having missed an essential bestek requirement has no legal interest in annulment — its offer would have been rejected anyway. The proposal to drop from 8 to 6 turbines was rejected as a substantive post-opening modification. Cost for WattElse: 200 euros court fee, 20 euros contribution, 770 euros procedural indemnity to each of the three respondents, plus 150 euros per intervening party.
Why does this matter?
Contracting authorities often think that 'atypical' procedures — project calls, market consultations, surface rights tenders, land concessions — exempt them from procurement law. Sometimes that is legally correct, as here. But for bidders the rules of the game do not change: as soon as a bestek with essential requirements is on the table, the same equal-treatment, transparency and conformity principles apply, and the Council of State applies the same standing doctrine as in formal awards. A bidder who lets its offer drift from the bestek loses its right to appeal.
The lesson
If during the evaluation phase you suspect you may have missed a bestek requirement, never admit it in writing in an email to the contracting authority. WattElse literally wrote in May 2020 that it was 'probably a misjudgment' — that single sentence was used in two instances to strip its standing. A defensible interpretation of an ambiguous bestek term becomes a strong ground in appeal; an admitted error is a death sentence.
Ask yourself
Does your correspondence with the contracting authority during the evaluation phase contain words like 'misjudgment', 'oversight', 'hasty interpretation' or 'we had assumed'? Strike those formulations and reframe them as a defensible interpretation of the bestek — otherwise the authority can use them against you in any procedure, even atypical awards outside procurement law.
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 →