Your tender specifications were suspended for lack of reasoning? You don't have to lower the bar — you just have to explain better why it's set so high
After the Council of State suspended the first tender specifications for Belgium's national day festivities on grounds of inadequate reasoning for the turnover threshold, the Chancellery was allowed four days later to launch a new tender with exactly the same heightened requirements — because the res judicata of a suspension ruling does not prevent the contracting authority from taking the same decision if it fixes the illegality (the reasoning).
What happened?
Shadow To Live, an event organiser, had been a subcontractor to Verhulst and Friends for the 2022 edition of Belgium's 21 July festivities. In 2023 it bid in its own name and was not selected (the contract went to Alice Events for €999,953.56 incl. VAT — see case 256755). In early 2024 the Belgian Chancellery launched a new framework tender for the 2024, 2025 and 2026 editions (specs no. 2023/028). The economic capacity criterion required an annual turnover of at least €2 million in each of the three last financial years (instead of €2 million cumulative over three years in 2023). The technical capacity criterion required a single reference worth at least €500,000 incl. VAT (up from €150,000 in 2023), and prohibited reliance on third-party capacity for the coordination and creation of the show. Shadow To Live — which met €2 million turnover in 2022 and 2023 but not 2021 — challenged this. In judgment 259,655 of 26 April 2024, the Council of State suspended the tender, finding the Chancellery's justification for the raised financial threshold 'prima facie not an admissible justification' supported by the tender documents or administrative file. Facing the 21 July deadline, the Chancellery withdrew the tender and launched a new one on 2 May 2024 (specs no. 2024/011) with identical financial and technical thresholds, but now supported by a detailed note to the Finance Inspectorate of 29 April 2024 invoking 'the growing scale of the event' as the reason. Shadow To Live filed a fresh extreme-urgency challenge. The Council now rejects all three grounds. On the submission deadline: it was not 15 days as claimed, and Article 37 §5 of the Law of 17 June 2016 automatically allows a 5-day reduction on the 22-day minimum for electronic submission — so more than 17 days is lawful without any urgency justification. On the raised turnover threshold: €2 million/year remains well below the legal ceiling of €6 million (twice the estimated value), and 'growing scale of the event' is prima facie correct, relevant and lawful — especially since the applicant admits meeting it for 2022, 2023 and 2024. On the raised reference requirement (€500,000) and the ban on third-party capacity for coordination and creation: the same reasoning applies, and under Article 78(3) of the 2016 Law such 'critical tasks' may lawfully be reserved to the tenderer itself. On res judicata: the first suspension ruling censured only the reasoning, not the intrinsic level of the requirement. The Chancellery was therefore entitled to impose the same threshold provided it supplied the missing reasoning.
Why does this matter?
If you had a tender suspended for deficient reasoning on a selection criterion, it's tempting to think the contracting authority is now forced to lower the bar. This judgment says the opposite: the res judicata of a suspension ruling extends only to what was explicitly censured. If the Council only censured the reasoning, the authority may reimpose exactly the same threshold — provided it now produces a solid documented justification. For bid managers: when an authority relaunches a suspended tender, don't focus on 'is the level lowered?' but on 'is there now a watertight written justification for the raised level?'. Conversely, contracting authorities should put this reasoning on paper (advice to the Finance Inspectorate, exchanges with sector organisations, internal notes) before launching the tender — not wait until forced to produce it in emergency proceedings. A second, often-overlooked takeaway: Article 37 §5 (electronic submission = automatic 5-day reduction on the minimum deadline) is free speed, and requires no urgency justification.
The lesson
If you successfully challenged a tender and obtained a suspension for deficient reasoning: don't assume the authority is forced to lower the requirement. Read the suspension ruling literally. Did the Council find the requirement 'unconnected to the subject matter' or 'intrinsically disproportionate'? Then the level must drop. Did the Council only find the reasoning missing or unsupported by the file? Then the authority can reissue with the same requirement plus better reasoning — and your second challenge must rest on fresh arguments.
Ask yourself
Four days after a suspension for lack of reasoning, you receive a relaunched tender with identical selection thresholds: first read the original judgment carefully (which exact sentence censured what?), then check which new documents have been added to the administrative file (note to the Finance Inspectorate, exchanges with sector bodies, references to contract value and scale), and only then decide whether a second challenge has any chance.
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 →