A contracting authority that has sat on your bid for 18 months can still walk away from the contract — even when the delay was their own fault
The Belgian Council of State dismisses Krinkels' extreme-urgency challenge against SOFICO's decision not to award three road-verge maintenance contracts: 18 months after bids opened, the tenderers' binding period had expired, and Article 85 of the Public Procurement Law of 17 June 2016 gives the contracting authority broad discretionary power to walk away and relaunch — even when the delay lies entirely with the authority itself.
What happened?
In February and July 2022, SOFICO — the Walloon infrastructure-financing company acting as central purchasing body for the Service public de Wallonie — launched three separate framework contracts for maintenance of road verges in the Tournai, Ath and Saint-Ghislain districts. The sole award criterion was price. Krinkels submitted bids for all three. Then eighteen to twenty-four months of silence followed. On 26 January 2024 SOFICO decided not to award, citing differing interpretations of the qualitative selection criteria. Krinkels filed an extreme-urgency challenge on 14 February 2024. Mid-proceedings, SOFICO withdrew those decisions and on 29 March 2024 issued three new ones — this time citing that the binding period of the bids had expired (30 September 2023), that 18 months had passed since the deadline, that the prices no longer reflected the market, and that the seasonal nature of the work allowed a new procedure without disrupting ongoing services. The decision added 'incidentally' that the relaunch would allow SOFICO to reword the ambiguous selection criterion. Krinkels filed a new challenge against those three new decisions — in a single application. The ruling splits in two. On admissibility: the Council finds NO connection (connexité) between the three challenged decisions. Same authority, same applicant, similar (but not identical) tender specifications, identical reasoning — none of that suffices. There must be a legal link whereby a ruling on one case directly affects the outcome of another. That's not the case here: three separate procedures, separate publications, separate specs. So the application is admissible only for the FIRST challenged decision (Tournai); Ath and Saint-Ghislain are dismissed without merits examination. Key takeaway: three parallel contracts require three applications — and three court fees. On the merits (Tournai only): the reason 'expired binding period' is found accurate, relevant and admissible. Article 89 of the Royal Decree of 18 April 2017 expressly confirms that an authority may walk away when the binding period expires without award. The fact that SOFICO caused its own delay changes nothing: 'a contracting authority cannot be forced to conclude a contract whose terms no longer match its assessment of the public service, merely because errors or delays can be attributed to it'. Article 85 is 'a specific application of the principle of mutability' and places no restrictions on the authority's reasoning. That SOFICO awarded other contracts of comparable age in parallel (which Krinkels correctly flagged) changes nothing: the authority is not bound by its decisions elsewhere and need not explain differences. The second branch of the challenge (the 'incidentally' mention of reworking the selection criterion) is dismissed as surplus reasoning. Challenge rejected in full; Krinkels pays €770 in costs.
Why does this matter?
This ruling combines two lessons critical to bid managers and contracting authorities alike. For BIDDERS: don't bundle multiple challenged decisions in one application, even when everything looks identical (same authority, same reasoning, same contract type). If the contracts were published and decided separately, there's no legal connection — and two out of three challenges will die without merits review. Second: don't expect a slow authority to lose its ability to walk away as a result of its own slowness. Article 85 of the 2016 Law is broad. For AUTHORITIES: when the binding period expires and the market has shifted, Article 85 (no award) and Article 89 (ask bidders to maintain their offer) both offer a route. Motivate that choice clearly, invoke the time elapsed and the expired binding period. Keep 'incidentally'-type side reasons out of the core reasoning — they may be treated as surplus, but they can also invite scrutiny (compare case 264386 where an unmotivated side element was actually central).
The lesson
If your bid has been gathering dust with a contracting authority for twelve months or more: adjust your strategy. Proactively ask for status, consider letting your bid expire so you can rebid under better conditions, and be ready for the authority to abandon and relaunch under Article 85 — even if that's their own slowness at work. If you want to challenge such a decision: assume broad discretionary power, and base your challenge on a clear assessment error (e.g. the contract IS still relevant, the authority DID award parallel contracts of comparable age). Critically: file separate applications for separate contracts, even when the challenged decisions look copy-pasted.
Ask yourself
You have a bid whose binding period is about to expire: have you weighed what you'll do if the authority asks you to maintain your offer (Article 89)? Or if they abandon the contract entirely? Do you know whether a parallel contract from the same authority, of comparable age, WAS awarded — because that's your strongest 'manifest assessment error' argument?
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 →