"We want to review the arrangements" is not a valid reason to abandon an award
The Council of State suspends the Walloon Region's decision to withdraw five pellet-stove lots of a MEBAR contract and relaunch the procedure, because the reasoning — a single sentence referring to an earlier suspension ruling and to "reviewing the award arrangements" — does not allow verification that the real motives are pertinent and admissible.
What happened?
The Walloon Region had launched in July 2023 a MEBAR contract for stoves (wood, gas, pellets) for low-income households — 24 lots across 12 zones and two strands (general and pellets). Au Coin du Feu (Hasselt) won six pellet-stove lots in October 2023. Competitor SA Jordan obtained suspension of five of those six lots in ruling 258.317 (22 December 2023): Au Coin du Feu only held approval class 2, whereas the cumulative value required class 4. Au Coin du Feu subsequently obtained class 4 (February 2024). In March 2024 the Region asked all bidders to extend their offers until 15 May 2024, with express reservation on the suspended lots. Stalemate: awarding to Au Coin du Feu (based on newly acquired class 4) or to Jordan (based on original approval status) would both be attackable. On 17 June 2024 the Region invoked article 85 of the 2016 Procurement Act: withdraw the award for the five disputed lots, do not award them, relaunch with revised specifications. Au Coin du Feu challenged this withdrawal in UDN. Problem: the formal reasoning in the withdrawal decision was essentially one sentence — "the contracting authority wishes to review the award arrangements for the pellet lots ... following suspension ruling 258.317 ... and adapt the object of these lots and the price schedule". The administrative file did contain concrete intentions (clarifying selection and award criteria, specifying approval classes and categories, allowing bidders to prioritize lots, adjusting weighting of systems and accessories), but those were not in the decision itself. The Council ruled: article 85 grants wide discretion, but withdrawal must rest on accurate, pertinent and admissible motives that appear in the formal reasoning. Ruling 258.317 had not addressed the tender documents but only the offer analysis (approval verification). That reference alone cannot be pertinent ground to revise the entire specifications. Prima facie the mere desire to change the procurement documents, without concrete explanation of the difficulties encountered, is insufficient reasoning. Ground serious, suspension granted.
Why does this matter?
Article 85 of the Procurement Act seems to give contracting authorities full freedom: "conducting a procedure does not entail an obligation to award". True, but this ruling brakes its use as an escape route. When you are caught between two fires — like the Walloon Region here, with a suspended award and a bidder whose situation changed between offer and award — the temptation is great to "just start over". You may, but you must then motivate concretely and verifiably what is wrong with the tender documents. Referring to an earlier ruling that addressed something else (here: approval verification in offer analysis, not the specification text itself) does not work. And the real motives — which were in the administrative file — cannot cure the motivation defect if they are not in the decision itself. For bidders who fear that an authority will "redo" when the outcome does not suit: this ruling is a powerful motivation weapon.
The lesson
As contracting authority: when invoking article 85 to abandon an award and restart, put in the decision itself — not only in your internal notes to the Finance Inspector or the minister — which concrete problems you identified with the specifications. Write down: which criteria were unclear, which interpretation issues arose, which price elements should be weighted differently. A reference to an earlier suspension ruling suffices only if that ruling actually criticized the specification text. As bidder: when an authority abandons the award with a vague phrase about "reviewing the arrangements", read the cited ruling carefully — does it address the tender documents, or only the offer analysis? In the second case, you have a motivation ground.
Ask yourself
Do you receive a withdrawal decision under article 85 that refers to an earlier suspension ruling? Check: did that ruling address the tender documents (criteria, object, price), or only the offer analysis (award decision, approval verification)? If the second: the authority must explain further why it now also wants to revise the specifications.
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 →