Rejection of suspension application: no interest in ground against exclusion of tender when tender ranks second anyway — award authority established via board delegation
The Council of State rejected the suspension application by BV R. against the exclusion of its tender and the award by De Lijn of a rail zone framework agreement to BV V., because BV R. had no interest in the ground against the exclusion — even if found regular, its tender would still rank second — and because the second ground regarding the authority of the signatory was not serious, as the actual award decision was taken by the Technical Director pursuant to a board delegation decision.
What happened?
De Lijn conducted an open procedure for a framework agreement for rail zone maintenance works in Antwerp, estimated at €7.3 million. BV R. had not filled in the price for one post (insurance policy) and was declared irregular. Even when all tenders were ranked on price, BV R. ranked second behind BV V. (€1.67M vs higher amount). The Council found ex officio that BV R. had no interest: even if regular, it would still rank second. A second ground challenging the authority of the signatory of the notification letter was not serious, as the actual award decision was taken by the Technical Director under board delegation.
Why does this matter?
This ruling illustrates that the Council can ex officio find that a tenderer has no interest in a ground against the exclusion of its tender when it would still rank lower than the chosen tenderer. It also clarifies that the notification letter signatory and the actual decision-maker are distinct.
The lesson
As a tenderer: before filing a suspension application against your exclusion, verify whether your tender would actually have a chance of being awarded even if found regular. As a contracting authority: ensure the delegation decision is documented in the administrative file.
Ask yourself
As a tenderer: would your tender rank first if found regular? Are you challenging the authority of the actual decision-maker or merely the signatory of the notification?
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 →