From first to second place at IOK: whoever lets a withdrawal stand can no longer use the old award report as a mirror
IOK first awarded the auction-house framework agreement to C. with 86.5 %, withdrew that decision after objections, questioned the bidders and, with a new award report, arrived at a reversed ranking in which B. came out on top with 84.71 % against C.’s 83 % — and because C. built its four pleas almost entirely on the differences between the old and the new report, the Council of State dismissed the application: a withdrawn decision is deemed never to have existed, so its reasoning is no longer a benchmark either.
What happened?
The intermunicipal association IOK placed, on behalf of the authorities affiliated to its joint purchasing service, a services contract ‘Group purchase framework agreement for the appointment of an auction house’, with specifications 202506VEI_LB. The board approved the contract conditions and the award method on 7 November 2025; the contract was published via e-procurement the same day. It concerns a single framework agreement with one contractor for the online sale, with a viewing day, of goods belonging to the affiliated authorities, for 48 months from 1 September 2026 to 31 August 2030, estimated at 339,320.51 euros excluding VAT with a maximum drawdown of 391,000.00 euros excluding VAT. The contract was not divided into lots and was awarded on best price-quality ratio through an open procedure with European publication. The specifications set three award criteria: price, expressed as a percentage service cost, for 40 points; the plan of approach with guarantees for quality performance, for 35 points; and the plan of approach for communication and financial settlement, for 25 points. The two qualitative criteria carried a minimum threshold of 50 % of the points on pain of substantial irregularity, and were assessed on a pre-published scale from ‘very weak’ to ‘excellent’, with the specifications expressly stating that equivalent tenders receive the same assessment. Tenders were due on 9 December 2025 at 10 a.m. On the basis of the review report of 23 January 2026, C. was ranked first with 86.5 %, ahead of B. with 81.21 %, and on 6 March 2026 the board decided to award it the contract. All bidders were informed on 10 March 2026 by registered letter and email. Objections followed. IOK went through the review report thoroughly again and decided on 20 March 2026 to withdraw the award decision of 6 March. That withdrawal was notified to the bidders on 24 March 2026, stating the statutory remedies. Nobody brought an action. Because of unclarities in the information and documentation submitted, IOK then questioned several bidders under article 66, § 3 of the Act of 17 June 2016, including both C. and B. That led to a new review report of 25 June 2026, with a reversed ranking: B. first with 84.71 %, C. second with 83 %. Within the second award criterion seven points shifted — B. gained 3.5, C. lost 3.5 — and that determined the final order. On 3 July 2026 the board awarded the contract to B., at a service cost of 14 %; the bidders were informed on 13 July 2026. C. lodged an application for suspension under extreme urgency on 28 July 2026; the case was heard on 18 August 2026. Its first three pleas — breach of the principles of equality, transparency and due care through an ‘impermissible reassessment beyond the limits of a clarification’, breach of the duty to state formal reasons and of transparency, and breach of patere legem quam ipse fecisti and of the published assessment method — were all three built around a comparison of the two award reports. C. pointed out that what had first counted in its favour, such as additional services for removing stickering, sirens and protective elements, was neutralised in the second report because it was unclear whether a surcharge was asked for it, while for B. initially negative or missing elements were assessed more favourably — the absence of a clear deadline for online listing was first rated negatively and later, inferred from scattered deadlines, found feasible within 21 calendar days and thus good. The Council of State did not follow. A withdrawal has, unlike a repeal, retroactive effect: the withdrawn administrative act disappears from the legal order ab initio and is deemed never to have existed. Because C. had not challenged the withdrawal, both the award decision of 6 March 2026 and the underlying award report had to be regarded as never having existed, and IOK was in principle no longer bound by the reasons on which that withdrawn decision rested. An applicant therefore cannot usefully base a plea on the mere difference in reasoning between a withdrawn and a subsequent decision, and the authority need not explain every difference in extenso: to require that would be to attach legal effects to the withdrawn decision after all. It was for C. to criticise the new award decision and the new report on their own merits, and it did not do so. The first three pleas were therefore not serious. The fourth plea, in which C. invoked a ‘manifest error of assessment and internal contradiction’, failed on admissibility: article 2, § 1 of the Regent’s Decree of 23 August 1948 requires a plea to state the rule of law and the way in which it was concretely infringed, and C. invoked no statutory provision or principle at all. In addition, the Council noted that on the second award criterion C. confined itself to a single sentence listing three assessment elements on which its tender scored better, while leaving aside the several elements on which the chosen bidder was rated more positively — a qualitative assessment must be read as a whole. Since no plea was found serious, the cumulative conditions of article 17, § 1 of the coordinated laws were not met. The Council admitted B.’s intervention, dismissed the application and ordered the intervening party to bear the costs of its intervention, set at 150 euros. It did not need to rule on the objections of inadmissibility raised.
Why does this matter?
The situation in this judgment recurs more often than one might think: an authority awards, receives objections, revisits its work, withdraws its decision, asks for clarifications and reaches a different outcome. For the bidder who thereby slips from first to second place, the temptation is obvious: lay the two reports side by side and point out every difference. This judgment makes clear why that is a dead end. By not challenging the withdrawal, the bidder also accepted that the first report disappears — not into the background, but out of the legal order, ab initio. What it contained is therefore no longer an established fact from which the authority must explain its departure, and the difference in itself proves no illegality. Anyone wishing to challenge the new decision must show what is wrong inside that new assessment: which concrete rating infringes which provision or principle, independently of any comparison. The fourth plea holds a second, sober lesson. A plea without a rule of law is not a plea: the Council of State will not construct one for you, and a single sentence listing three points on which you scored better does not outweigh a qualitative assessment that must be read as a whole. That is not formalism but the flip side of the adversarial process: the defending party must know what it is defending against. For authorities the judgment works liberatingly in the other direction. Withdrawing an award decision and redoing the assessment is a valid way to correct a procedure, and the new decision owes no account to the old one. But it is no carte blanche: the new assessment must stand on its own feet, and it is precisely there that a sharper plea could have carried the application.
The lesson
If you slip from first to second place after a withdrawal, you have two choices and you must make them in time. Either you challenge the withdrawal decision itself within the period notified to you — after that it is definitive and the old award report disappears retroactively. Or you accept it, in which case your action against the new award must be built entirely on the new assessment: which rating rests on incorrect facts, which requirement of the specifications was not applied, which category of the scale was applied differently to equivalent tenders. Do not cite the first report as a yardstick, for that door is closed. In each plea state expressly the rule of law allegedly infringed and explain how that happened concretely: ‘manifest error of assessment and internal contradiction’ is no legal basis. And criticise the qualitative assessment as a whole; merely listing the points on which you were rated better, while omitting those on which your competitor scored better, undermines your own case. As an authority, you may decide differently after a withdrawal without explaining every difference from the earlier reasoning — but make sure your new report is independently readable and defensible, that questioning under article 66, § 3 stays within clarification and does not lead to a new tender, and that you apply the published assessment scale equally to all bidders. Always notify a withdrawal stating the available remedies: that is what makes it definitive.
Ask yourself
As a bidder who falls back after a withdrawal, have you decided in time whether to challenge that withdrawal decision itself — and do you realise that without such an action you can no longer use the old award report as a yardstick? Is your plea built around what is concretely unlawful in the new assessment, or around the differences from the previous one? Does each of your pleas state the rule of law allegedly infringed and the way it was concretely breached? Do you read the qualitative assessment as a whole, including the elements on which your competitor scored better? And as an authority: does your new award report stand on its own, does your questioning under article 66, § 3 stay within the limits of a clarification, and do you apply the published scale in the same way to equivalent tenders?
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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 →