Declare void or allow correction: the Brussels-Capital-Ixelles police zone forgot to show it had chosen
The Brussels-Capital-Ixelles police zone listed the irregularities in Pitagone’s tender for mobile anti-intrusion barriers and inferred nullity straight away, whereas article 76, § 5 of the Belgian placement decree gives it a genuine choice, in a negotiated contract below the European threshold, between declaring the tender void and allowing the irregularity to be corrected — and because neither the act nor the administrative file showed that it had actually made that choice, the Council of State suspended the award to BAAVA France under extreme urgency.
What happened?
On 25 August 2025 the eProcurement platform published a notice for a public supply contract: the acquisition of a high-resistance mobile anti-intrusion barrier system, under the European Fortress Light project (ISF-088-109), with 15 September 2025 as the deadline for tenders. The subject matter was precisely defined: the supply, delivery, unloading and storage of a complete mobile security barrier system covering 33 linear metres, certified or demonstrably equivalent to the PAS 68 and IWA 14-1 impact-resistance standards, with everything needed for immediate commissioning — barrier modules, integrated mobility devices, suitable storage containers, training and a warranty on all equipment supplied. The authority chose the negotiated procedure without prior publication. Under the specifications the contract went to the economically most advantageous final tender on three criteria: price for 60 %, certified effectiveness for 20 %, and weight and ease of assembly for 20 %. The technical and functional requirements included certification compliant with or equivalent to PAS 68 and/or IWA 14-1, resistance to the impact of a vehicle of at least 7.5 tonnes at a minimum of 48 km/h, assembly without specialised tools and preferably by a single person, at least four storage containers, and a video demonstrating installation. Pitagone and two other bidders tendered. On 17 September 2025 the police zone asked Pitagone to complete its tender with certain missing mandatory documents, which it did by emails of 20 and 22 September; on 25 September it supplied a further video on request. On 20 October 2025 the contract was awarded to DPLS Invest. Pitagone learned of this only on 1 December 2025. It requested the award decision on 2 December; the same day the police zone sent it the tender analysis report with an explanation of the points it had lost, and an addition four days later. On 12 December 2025 Pitagone applied to the Council of State for suspension under extreme urgency against that first award. On 29 December 2025 the police zone took note of that action, found that it raised questions requiring closer examination, considered that the file should be further investigated through a complete and structured re-analysis of the tenders in order to answer those questions in detail, accordingly renounced awarding the contract and withdrew its decision of 20 October 2025. On 22 June 2026 it drew up a new analysis report on Pitagone’s tender and that of the single remaining bidder, and awarded the contract to the latter, BAAVA France. That is the contested act, notified to Pitagone on 8 July 2026. It again applied for suspension under extreme urgency on 23 July 2026; the case was heard on 12 August 2026. Its single plea had two branches. In the first it argued that article 76, § 5 of the decree of 18 April 2017 — expressly the basis of the contested act — obliges the authority genuinely to exercise its power of appreciation between two options: declaring the tender void, or having the substantial irregularity corrected. The contested act merely qualified certain non-conformities as substantial irregularities and inferred nullity automatically, without showing that the possibility of correction had been considered, even though the specifications themselves expressly envisaged that alternative and Pitagone claimed to have a technical solution capable of meeting the contested requirements. In the second branch it alleged an insufficiently reasoned change of position: in the first award decision, in the same procedure, on the basis of the same tenders and within the same regulatory framework, the police zone had in fact invited it to correct its tender. The police zone argued that Pitagone alleged no breach that had actually harmed it. The Council of State rejected that objection through the notion of interest in the plea. Article 14, § 1, second paragraph of the coordinated laws provides that irregularities lead to annulment only where they were capable of influencing the substance of the decision, deprived the interested parties of a guarantee, or affected the competence of the author of the act. According to the Constitutional Court, the formal statement of reasons for individual administrative acts is precisely such a guarantee: a right of the administered and additional protection against arbitrary decisions, allowing both the addressee and any interested third party to know immediately the grounds of the decision. That obligation would miss its purpose if the administered only learned the grounds after bringing an action. Where that guarantee is denied, that constitutes harm, and the plea — like the action itself — is therefore admissible. On the substance of the first branch the Council recalled what the Act of 29 July 1991 requires: the authority must set out in the instrument of the act the factual and legal considerations underlying it, so that the addressee understands on reading it why it was taken in that sense and can assess whether an action is worthwhile. To be adequate, the reasoning must rest on elements which, in the light of the administrative file, are accurate, relevant and legally permissible; its extent depends on the circumstances and must be assessed reasonably. Reasoning by reference to another document is allowed, provided that the substance of that document is reported in the act or that the addressee knew the document at the latest when the act was notified. And reasoning supplied afterwards in procedural documents cannot in any event cure a defect affecting the act from the outset. On article 76, § 5 itself, the Council rejected the police zone’s reliance on judgment no. 266.413 of 20 April 2026 — delivered without any application of article 76 and therefore not transposable. Relevant, however, were judgment no. 257.161 of 7 August 2023, invoked by Pitagone, and judgment no. 252.355 of 8 December 2021, cited by the police zone: since a negotiated procedure without prior publication was used here and the contract amount was below the European publication threshold, article 76, § 5 confers on the authority a discretionary power of appreciation as to whether or not to allow correction. It follows that the instrument of the act and the administrative file must sufficiently show that the authority actually exercised that power — precisely in order to verify that, within its discretion, it intended to ensure effective competition and equality between bidders. Here the contested act listed the points the police zone considered irregular and concluded that the tender failed to meet several substantial and minimum requirements of the specifications, that it was affected by several individually substantial irregularities within the meaning of article 79, § 1, fourth paragraph, 3° of the decree of 18 April 2017, and that it had to be declared void under article 76, § 5. Such reasoning does not sufficiently show that the police zone then also asked itself whether it should give Pitagone the opportunity to correct, and prima facie the administrative file contained no element evidencing that assessment. The explanation in the note of observations — that correction would oblige Pitagone to replace the proposed barrier with another one having different certified performance, different technical characteristics, different storage arrangements or different operational components, and would therefore amount to filing a new and thus irregular tender after the fact — rested on no document in the file and could in any event not cure the defect affecting the act from the outset. Without any need to rule on the argumentative email Pitagone had sent the Council an hour and a half before the hearing, the plea was found prima facie serious in its first branch for breach of the Act of 29 July 1991. Since suspension could be ordered on that basis, the second branch no longer had to be examined. The Council ordered suspension of the award decision of 22 June 2026 and immediate execution of its judgment, kept the designated documents confidential at this stage, directed notification by email with acknowledgement of receipt to the parties that had not opted for the electronic procedure, and reserved the costs.
Why does this matter?
Article 76, § 5 of the placement decree is often read in practice as confirming what the authority does anyway: sending a substantially irregular tender away. This judgment makes clear that the provision says something else. In a negotiated contract below the European threshold there are two statutory exits, and the authority must genuinely choose. That freedom is broad — the Council calls it discretionary and does not review whether the choice was right — but for exactly that reason it must be visible. The act and the file must show that the question ‘void, or put right?’ was asked, because that is the only way to check whether the authority had effective competition and equality between bidders in mind. A decision that lists the irregularities and then leaps straight to nullity misses that step, and that is no detail: it is a defect in reasoning affecting the act from the outset. The second, broader lesson concerns where reasoning belongs. The police zone had a defensible substantive argument — that correction here would in fact amount to a new tender, because the barrier itself would have to be replaced — but that argument appeared nowhere in the file and surfaced only in the note of observations. That cures nothing. The Constitutional Court, to which the Council expressly refers, has raised the formal statement of reasons to a guarantee against arbitrariness, and a guarantee that only takes effect after the citizen has started proceedings does not work. There is a useful corollary for bidders: a defect in reasoning is not the weak, ‘formal’ plea it sometimes seems. Because the formal statement of reasons is a guarantee within the meaning of article 14, § 1, second paragraph of the coordinated laws, its denial suffices as harm — you need not show that proper reasoning would have won you the contract. Finally, the sequence of facts shows how costly a half-corrected procedure can be: the police zone withdrew its first award in order to re-analyse the tenders thoroughly, took six months over it, and then stumbled on the one step it did not spell out in its new decision.
The lesson
If, as an authority, you declare a tender void for a substantial irregularity in a negotiated contract below the European publication threshold, write into the decision itself that you weighed the two options of article 76, § 5 — and why you chose nullity. One paragraph will do, as long as it genuinely reflects the weighing: why correction was not possible or not appropriate here, and why that is compatible with effective competition and equality between bidders. Make sure the administrative file supports that weighing with a document, a note or a passage of a report; an argument that appears only in your procedural documents is lost. If your specifications expressly mention the correction route, the reproach that you ignored it weighs all the heavier. And if you invited correction earlier in the same procedure, you would do well to explain your changed position, even though the Council did not have to rule on that here. If you are a bidder and your tender is declared void, read not only whether the irregularities identified are correct, but also whether the decision shows that the authority made a choice between nullity and correction. If it says nothing about that, you have a serious plea — and you need not prove that you would have won the contract: the denial of the guarantee of formal reasoning is itself the required harm. Point out too where the specifications named correction as an option, and where you had a technical solution capable of meeting the contested requirements.
Ask yourself
Does your decision declaring a tender void show that you made the choice under article 76, § 5, or does it leap from the finding of substantial irregularities straight to nullity? Is there a document in the administrative file evidencing your weighing, or does your reasoning exist only in your note of observations? Do your specifications mention the possibility of correction — and have you explained why you did not use it in this case? Did you invite correction earlier in the same procedure, and if so, do you explain that change of course? And as a bidder: do you realise that where the guarantee of reasoning has been denied you need not show you would have won the contract, because the harm lies in the denial itself?
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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 →