Authority may not deviate from interpretation used by its mandatary during negotiations
When a mandated entity applies a particular interpretation of tender conditions during negotiations, the contracting authority may not depart from it in the award decision without giving candidates the opportunity to submit a new offer.
What happened?
AViQ and FAMIWAL seek a building to rent in Charleroi through a call for expressions of interest (AMI). The AMI requires the building to contain a minimum of 100 car parking spaces and 100 bicycle spaces. IRET offers a building with 106 parking spaces in total, but the building is shared with other tenants — pro rata to the leased surface area, AViQ and FAMIWAL would have access to 72 car spaces and 80 bicycle spaces. Immowal, the company mandated to conduct the procedure, finds that IRET's offer meets the AMI requirements since the building contains more than 100 spaces. It rates the 'accessibility and mobility' criterion as 'very good' and recommends selecting IRET. The governing bodies of AViQ and FAMIWAL do not follow this advice. They rule that Immowal made a reasoning error: the 100 spaces must be exclusively available for AViQ and FAMIWAL. They reject IRET's offer and select Eiffage's project. The Council of State annuls all three decisions.
Why does this matter?
This judgment matters for three reasons. First, it confirms that the transparency obligation flowing from the principle of equal treatment also applies to procedures outside public procurement law, such as a call for expressions of interest for a lease. Second, it reaffirms the fundamental rule that a clear text is not subject to interpretation, even if the literal reading does not match the presumed intention of its author. Third — and most critically — it establishes a consistency obligation: if the mandated entity conducting the negotiations applies a particular interpretation of the conditions, the contracting authority may not retroactively change that interpretation without giving candidates the chance to submit a new offer based on the revised reading.
The lesson
The transparency obligation requires the authority to maintain the same interpretation of the conditions governing the competition throughout the entire procedure. When a mandated entity applies a particular reading of the conditions during negotiations (the building must contain 100 parking spaces, not: 100 spaces exclusively for the tenant), the contracting authority may not depart from it in the award decision. If it does, it vitiates the procedure, unless it first invites candidates to submit a new offer based on the corrected interpretation. A clear text is not interpreted — not even if the literal reading produces results the authority did not intend.
Ask yourself
Do you work with an external mandatary or evaluator who conducts negotiations? Verify that the interpretation this entity applies to the tender conditions matches your own reading. If you deviate from the interpretation used during negotiations, you must give candidates the opportunity to submit a new offer. Draft conditions unambiguously — if you mean that parking spaces must be exclusively available for the tenant, state this explicitly.
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 →