Rejection of claim against ambitious but realistic planning — start after 7 calendar days and 140 working days total execution period not substantially irregular after thorough review by contracting authority and design office
The Council of State rejects the request for suspension of the award of a contract for construction works on a warehouse and mill (FEED PILOT) because the ambitious planning of the selected tenderer (start after 7 calendar days, total 140 working days) had been thoroughly examined by the contracting authority and its design office and each of the five objections raised by the applicant proved unfounded.
What happened?
The Eigen Vermogen van het Instituut voor Landbouw- en Visserijonderzoek (EV-ILVO) tendered a works contract through an open procedure for the construction of a warehouse, surrounding works with weighbridge, and foundation works for a mill as part of the FEED PILOT project (ERDF-funded). The award criteria were: price (70 points), start date (10 points), and execution period (20 points, divided across three milestones). The maximum execution period was 250 working days, with a latest start date of 60 calendar days after closing. Three tenderers submitted offers. The intervening party (temporary association S.) scored 92/100 and offered a start after 7 calendar days with a total execution period of 140 working days. The applicant (BV V.) scored 84.5/100 with a start after 56 calendar days. After a first award decision on 11 October 2024 was challenged and withdrawn on 12 November 2024, a new award report was prepared with a thorough examination of the intervening party's planning. BV V. filed a suspension application under extreme urgency, arguing the selected tenderer's planning was substantially irregular. Five specific objections were raised: (1) technical product sheets had to be submitted 30 days before processing on site, impossible with a 7-day start — the Council found the specifications distinguished between submitting sheets (before start of works) and processing materials on site (later); (2) the start-up meeting had to take place at least 8 calendar days before works commenced — the Council found nothing prevented holding it before closing; (3) the site notification under the Royal Decree of 25 January 2001 required at least 15 calendar days' notice — the Council pointed to Article 47 allowing an alternative notification procedure when preparation time is insufficient; (4) the KLIP/KLIM underground utilities request required 20-40 days — the tenderer had already completed this during the offer phase; (5) asbestos removal required 15 days' notice — no asbestos removal was included in the contract as the building owner had already removed all asbestos. The Council concluded the contracting authority and its design office had thoroughly examined the planning and provided reasoned responses on each point. The application was rejected.
Why does this matter?
This judgment demonstrates that an ambitious planning does not automatically constitute a substantial irregularity. The key lies in the quality of the review by the contracting authority: ILVO and its design office thoroughly examined each objection, requested additional justification from the selected tenderer, and documented their findings in detail in the award report. The judgment also confirms that tenderers may make preparations at their own risk before the conclusion of the contract, and that statutory deadlines must be read in their proper context.
The lesson
When a tenderer offers an ambitious planning, examine it thoroughly and document your findings. Request a justification from the tenderer and review each objection point by point. Read statutory deadlines in their proper context: many deadlines allow alternatives (such as Article 47 of the Royal Decree of 25 January 2001 for site notification) or only apply when a specific activity actually takes place.
Ask yourself
Have you examined and documented a point-by-point justification for an ambitious planning? Have you read statutory deadlines in their proper context, including possible alternative procedures?
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 →