If you write ‘mandatory options’ into your specifications, you cannot quietly drop them: the Council of State annuls the award of the Hamois energy renovation
The Hamois public welfare centre required three ‘mandatory options’ in its specifications — in reality variants — but decided, after the negotiations and the final offers, to disregard them unilaterally and without warning the bidders when evaluating; because this breached the principles of equality and transparency and skewed the ranking to the detriment of RENO.ENERGY, whose offer ‘with options’ was cheaper than that of the beneficiary Denis, the Council of State annulled the award decision through the abridged procedure.
What happened?
The public social welfare centre (CPAS) of Hamois awarded, through a negotiated procedure with prior publication, a public works contract for the energy renovation of the adapted dwellings at rue d’Achet 11 a to f in Hamois (special specification 2024/T/001). The specification stated under point I.12 that no required or authorised variants were provided, but imposed under point I.13 ‘Options’ three mandatory options: the installation of triple-glazed windows (3.5), the external wall insulation with bio-based materials (4.4.4) and a single-flow ventilation system (6.4.4) — each as an alternative to, respectively, double glazing, EPS panels and a double-flow ventilation system. After the negotiations and the submission of the final offers (BAFO), the CPAS decided, when evaluating, to drop those three options definitively, despite the reservation of the acting financial director. The offers were then compared without taking the options into account. By decision of the welfare council of 10 July 2025 the contract was awarded to Denis SRL; that decision was notified to RENO.ENERGY by letter of 28 August 2025 and in full by email of 8 September 2025. The prices were close: Denis’s offer was 486,909.06 euros excluding VAT without options and 534,052.85 euros with options; the applicant’s 513,741.65 euros without options and 520,330.34 euros with options; Kaiser Construct’s 715,002.48 euros without options. With options, then, the applicant’s offer was cheaper than Denis’s. On 11 September 2025 RENO.ENERGY brought an action for annulment. By judgment no. 264.570 of 20 October 2025 the Council of State suspended execution under extreme urgency, because the second plea was serious. The CPAS then announced it did not wish to continue and stated that it had withdrawn the contested decision on 13 November 2025; but because it did not produce proof of sending that withdrawal to the various bidders, the withdrawal could not be regarded as definitive and the action had not become without object. Because the defending party had not requested continuation within the time limit, the Council applied the abridged procedure of article 17, § 9. On the merits it confirmed the assessment of the suspension judgment. Although article 87 of the Royal Decree of 18 April 2017 (single ranking, taking options into account) does not apply to the negotiated procedure, the authority remains bound by the principles of equality and transparency of article 4 of the Act of 17 June 2016. Whether the three items were variants — as the parties themselves acknowledged at the hearing — or options: in either case the CPAS could not simply disregard them. Variants must at some point be weighed against the base offers using award criteria defined in advance; and although under article 56, § 4 an authority is never obliged to lift an option, it may not set aside a required or authorised option at any moment and in any way without disregarding equality and transparency. It therefore had to make known, in tempore non suspecto — either in the contract documents or during the negotiations — that it would not take the options into account in the evaluation, which it did not do. The applicant pointed out, uncontradicted, that after the extraordinary budget amendment no. 1/2025 of 15 May 2025 the credits (567,735.63 euros) sufficed to award the contract ‘with options’, and that, had the options been counted, it would have ranked first. The Council held that the second plea was founded and annulled the award decision of 10 July 2025. The CPAS was ordered to pay the costs: a roll fee of 200 euros, a contribution of 26 euros and a procedural indemnity of 770 euros in favour of the applicant.
Why does this matter?
This judgment draws a sharp boundary around the authority’s freedom to shuffle options and variants. The core message is twofold. First: the legal qualification follows reality, not the label. What the specification called ‘mandatory options’ were essentially variants — alternative ways of executing — and the parties acknowledged this at the hearing. Second, and more importantly: even in a flexible negotiated procedure, where the strict ranking rule of article 87 of the Royal Decree of 18 April 2017 does not apply, the principles of equality and transparency of article 4 of the Act of 17 June 2016 remain fully in force. An authority that makes options or variants mandatory in its specification creates expectations on which bidders base their offers. Disregarding them afterwards, after the negotiations and the final offers, without any warning, distorts the economy of the contract and risks arbitrarily favouring one bidder — all the more visibly here because the applicant’s offer ‘with options’ was cheaper than the beneficiary’s and the credits amply sufficed. Article 56, § 4 — the authority is never obliged to lift an option — is therefore no licence to silently delete a required option at the decisive moment. Finally, the judgment illustrates the bite of the abridged procedure: an authority that does not request continuation after a suspension risks the Council proceeding straight to annulment — and a botched withdrawal, not notified to all bidders, does not save the case.
The lesson
If you are an authority and include options or variants in your specification, decide before the evaluation — and make that choice known to all bidders, either in the contract documents or during the negotiations — whether and how you will take them into account. You are not obliged to lift an option (article 56, § 4), but you may not silently drop a required or authorised option or variant after the final offers; that breaches equality and transparency, even in a negotiated procedure. And call an item what it is: an alternative way of executing is a variant, not an option. If, after a suspension, you want to correct the matter through withdrawal, notify it to all bidders and keep the proof of sending, otherwise the withdrawal is not definitive and the action survives. If you are a bidder, the judgment teaches that it pays to follow closely how mandatory options and variants are handled: if an option on which you based your price is ignored without warning and the ranking thereby tips, you have a serious plea — especially if your offer ‘with options’ was the most advantageous.
Ask yourself
As an authority, have you decided before the evaluation, and in a way known to all bidders, whether and how required options or variants are taken into the ranking? Do you realise that article 56, § 4 (no obligation to lift an option) does not allow you to disregard a required option after the final offers without warning? Have you checked whether the items in your specification are genuine ‘options’ or rather ‘variants’ — alternative ways of executing that must be weighed against the base offers? If you want to withdraw after a suspension: have you notified the withdrawal to all bidders and kept the proof of sending, so that it is definitive? As a bidder, do you track whether an option on which you based your price was correctly taken into the evaluation — and what that does to the ranking?
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 →