Highest bidder challenges only the irregularity finding on his own bid — and loses on standing
The Council of State dismisses the urgent suspension request of a highest bidder whose offer was found materially irregular, because he challenges only that irregularity finding and says nothing about the award to his competitor — which, in a price-only procedure, means he cannot win the contract in any event.
What happened?
De Vlaamse Waterweg (Flemish Waterway Authority) put out a works contract — transport and installation of a spare gate at Merelbeke and removal of the defective gate — via an open procedure with price as the sole award criterion. Three bidders submitted offers. NV B. had the highest bid. On 23 February 2026 the contract was awarded to a third party (the lowest bidder); the offers of the other two, including NV B., were rejected as materially irregular. On 24 February 2026 NV B. was notified of the rejection, with an extract of the award decision covering only its own offer — the identities and amounts of the competing bids were not disclosed. On 10 March 2026 NV B. filed for urgent suspension. The plea targeted only the irregularity finding on its own offer. No plea was directed against the award or the competing bids. The authority raised a preliminary objection: NV B. had no standing. Its bid was the highest, so even if the irregularity finding were suspended, it could not win — it was not the cheapest. At the hearing NV B. replied that it had received only an extract of the award decision and could therefore not develop pleas against the other bids. The 14th Chamber sided with the authority. Standing in public procurement review 'ideally consists in regaining at least a chance to be awarded the contract' (citing Council of State, General Assembly, 2 December 2005, no. 152.174). In a price-only procedure where the applicant is not the cheapest, challenging only its own irregularity finding cannot restore that chance, because the competing bids and the award decision stand unaffected. Objection upheld, application inadmissible, applicant ordered to pay costs.
Why does this matter?
The ruling hits a tactical misconception common in almost every contested rejection: 'they wrongly found my bid irregular, so this has to be corrected'. That may be right on the merits — but in a price-only procedure where you are not the lowest, correcting your own irregularity finding is meaningless without an attack on the competing bids or on the award itself. The Council of State requires genuine standing — a real chance to obtain the contract — not the procedural satisfaction of 'being vindicated' on a sub-decision. For bid managers, the operational lesson is to map out every decision you need to attack together before filing.
The lesson
If you are a non-lowest bidder challenging an irregularity finding in a price-only open procedure, your application must contain at least one plea against the award itself — for example against the accepted price justification of the winning bidder, or against the award decision as a whole (insufficient reasoning, flawed comparison, etc.). If you received only an extract of the award decision, request the full decision immediately or insert a conditional further plea that you can develop once the full decision is available. Relying at the hearing on missing information as an excuse does not work.
Ask yourself
Are you a non-lowest bidder whose offer was rejected? Does your suspension application contain a plea directed at the award to the winner (for example on their price justification or irregularity), not only against the rejection of your own offer? If there is no second plea, add one — or your application will be declared inadmissible for lack of standing.
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 →