Second round, different outcome: how a contracting authority can solidly award the same contract after a first suspension
The Council of State dismisses A2's urgent-suspension claim against the re-award to KRINKELS of a SOFICO motorway maintenance contract, because this time SOFICO produced a concrete price verification and a justified inventory reorganisation — a textbook example of a contracting authority learning from a first suspension.
What happened?
In May 2021, SOFICO launched a public procurement for 'brushing, cleaning, cleanliness and maintenance of green areas along the motorway' of the Marcinelle district (specifications SOFICO-21-1036). Price was the sole award criterion, and five bidders submitted offers: ARTBEL, Eurogreen/Sotraplant, KRINKELS, Sogeplant and A2. SOFICO asked A2 in September 2021 for price justifications for 14 items where prices appeared 'anormalement bas/élevés'. A2 replied, and SOFICO awarded the contract to KRINKELS in February 2022. But the Council of State suspended that first award decision on 12 April 2022 (judgment no. 253.496). The reasoning: SOFICO had justified the 'non-negligible character' of certain items on two indicators — financial impact and price deviation from the estimate and sector prices — while that second indicator does not in itself demonstrate the non-negligible character, and SOFICO had never invoked that second indicator when classifying the items as non-negligible. SOFICO learned its lesson. It restarted the procedure with new specifications (SOF-MI-862-23-2843) in which the inventory was restructured: items were regrouped or removed, and certain quantities reduced. As a result, the number of non-negligible items increased — allowing the contracting authority to ask for more targeted price justification. In 2023 new bids came in, and in September 2024 SOFICO again made an award proposal — again to KRINKELS, with A2 in second place. A2 lodged an urgent-suspension claim on 19 September 2024. Three grounds, all three got a prima facie dismissal. The first ground concerned the motivation of KRINKELS' selection. That motivation was succinct: 'all bidders attached to their offer the DUME completed in accordance with the requirements', and for KRINKELS it was established that it 'is not in a situation of exclusion and meets the selection conditions'. The Council held that succinct motivation is sufficient if selection presents no particular difficulties, and the analysis report in the administrative file showed that SOFICO had concretely verified whether KRINKELS met each selection criterion. Not a serious ground. The second ground — the heart of the case — concerned the price verification. A2 reproached SOFICO that the gap between KRINKELS' total offer price and the estimate was not enough to rule out an abnormal price, and that the explanation of the 'réorganisation du métré' was incomprehensible. The Council recalled the dual purpose of price scrutiny: to protect the contracting authority against unfeasible prices and to protect fair competition. It found that SOFICO had explicitly asked KRINKELS by letter of 5 June 2024 to explain 'the importance of the reduction' of its price compared to its 2021 bid, and that KRINKELS had answered on 17 June 2024. The analysis report also contained a concrete comparison per item. No manifest error of assessment — not a serious ground. The third ground was particular: A2 deduced from the sentence 'réorganisation du métré (regroupement ou suppression de postes, voire diminution de quantités)' in the award decision that KRINKELS had itself adjusted the inventory — which would amount to unequal treatment. But the Council read that sentence in context: it was in the part on price comparison between the 2021 and 2023 procedures, and referred exclusively to SOFICO's reorientation of the specifications. The same decision elsewhere also spoke of 'la réorganisation de l'inventaire des postes du marché (au regard du marché de 2021)'. The ground therefore rested on a factual error and was rejected. KRINKELS keeps the contract.
Why does this matter?
This is a ruling that contracting authorities should read after every defeat in summary proceedings. SOFICO had received a suspension in 2022 on a specific motivation point — the conflation of two indicators when determining the non-negligible character of items. In the second round it not only adjusted its motivation, but also redesigned its inventory: items were regrouped, quantities updated, and the price verification was visibly concrete via a formal letter and a structured analysis report. For bidders considering a second urgent-suspension claim after an earlier victory: check carefully whether the contracting authority has actually fixed the deficiencies found. The Council does not automatically repeat what it decided earlier — if the procedural homework has been done, the contracting authority gets the latitude that its discretion allows.
The lesson
After a suspension or annulment: redo the entire procedural story. Document every detail of the price verification in writing (request for explanation by letter, bidder's answer, comparison table in the analysis report), and ensure the motivation of the second award decision explicitly addresses the elements that disturbed the Council of State in the first round. For bidders: a new procedure means the contracting authority is allowed to revise what it did wrong in the first round — your earlier victory is not a free pass.
Ask yourself
Does your new award decision — after an earlier suspension — contain an explicit comparison with the first procedure and a visible concrete price verification per item? Or are you recycling the same formulations from the first round?
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 →