Replacement buses worth 191.7 million euros: after withdrawing its award, SNCB was entitled to negotiate on price with the front-runner alone
After SNCB withdrew its first award of lot 2 of the eight-year framework agreement for rail-replacement buses because of inadequate reasoning, it resumed the procedure at the second-offer stage and negotiated further with front-runner Eurobussing Brussels alone, and on one element only — price; the Council of State accepted prima facie that the first award had breached equal treatment and transparency, but held that the withdrawal and the resumption could cure those defects, and rejected all four pleas of the losing bus operators.
What happened?
On 3 June 2025 SNCB’s management committee decided to put out a framework agreement for the ‘transport of passengers by bus/coach in the event of rail interruption (planned and unplanned)’ — the replacement buses that run when trains are cancelled. The contract was to start on 1 January 2027, run for eight years and was estimated at 191,700,000 euros. It was divided into two lots: lot 1 for the Flemish Region and Brussels-North, lot 2 for the Walloon Region and Brussels-South. The notice appeared on 13 June 2025 in the Official Journal of the European Union and the Bulletin of Awards; eleven operators applied to participate and on 3 September 2025 the Chief Procurement Officer selected ten, among them the group around Pullman Bus, DB Développement and Kim Cars. Four bidders submitted offers for lot 2, including Eurobussing Brussels. On 18 December 2025 a second round of offers was requested; all four submitted again on 5 January 2026. On 26 January 2026 SNCB asked only Eurobussing Brussels for a further offer, which followed the same day. On 27 March 2026 the board awarded lot 2 to Eurobussing — comparing, as appears to be common ground, its third offer with the others’ second offers. After a first action under extreme urgency of 24 April 2026, the board withdrew that award on 22 May 2026, on the ground that the criticism of the formal reasoning of the evaluation was serious enough and that it was in SNCB’s interest to be able to take a fresh, properly reasoned decision quickly. By judgment no. 266,864 of 29 May 2026 the Council of State dismissed the first action for that reason. On that same 22 May 2026 the board reanalysed the offers and decided to continue negotiations only with the best-ranked bidder, and then only on price: the qualitative aspects had been sufficiently developed over two rounds, a narrow negotiation allowed a final offer to be requested quickly, and the gap with the other bidders was so wide that a price reduction — the price criterion carried 40 per cent of the total score — could not realistically lift them into first place. Eurobussing submitted its best offer on 1 June 2026; on 26 June 2026 lot 2 was again awarded to it, and on 30 June 2026 both decisions were notified. On 14 July 2026 the three bus operators sought suspension under extreme urgency of the decisions of 22 May and 26 June; on 30 July came the annulment action and Eurobussing’s application to intervene. The hearing took place on 18 August 2026. None of the four pleas held. The first, on competence, failed on every point: no rule obliges a contracting entity to notify the selection decision to selected candidates as well — article 7(1) of the Law of 17 June 2013 requires communication only to those not selected; the CPO taking his decisions through the SAP case-management system does not make them irregular so long as the author is identifiable; the signatures of the CEO and CFO (article 162quater of the Law of 21 March 1991) and the company secretary’s attestation sufficed to establish that the board had adopted both contested acts; and the contract notice is a mere implementing act requiring no approval. The second plea went to the heart of the case. Article 6 of the specifications expressly allowed SNCB to decide ‘during any negotiations’ to conduct them only with the best-ranked bidder(s) — wording that does not exclude reducing the number of participants after negotiations have already begun. That bidders had never expressly been asked for a BAFO did not help them: in a negotiated procedure bidders must of their own motion submit the offer that best meets the entity’s needs, and the specifications had in terms invited them to offer their ‘best price’. The more precise BAFO regime that article 38 of the Law of 17 June 2016 lays down for the classic sectors flows from a choice by the European legislature in article 29 of Directive 2014/24/EU, not from a mechanical application of the principles of equality and transparency. And the Council may not substitute its own view of how best to run a procedure for the entity’s: the applicants showed no manifest error of assessment, and the bare assertion that they could still have improved their offer technically does not refute the reasoning about the considerable gap. The third plea produced the most striking finding. The Council accepted the applicants prima facie where they argued that SNCB had not observed the principles of equality and transparency in its first award decision and its notification — but they did not show that those illegalities had irremediably compromised the procedure. The rules on withdrawing a right-creating decision do not require the administration to set out in the withdrawal all the defects affecting its act, nor to confine itself on resumption to correcting the defects it mentioned. SNCB was therefore entitled to withdraw on the ground of inadequate reasoning and to resume the procedure at a point where it could also correct the alleged breaches of equality and transparency; the applicants identified no rule of law requiring the procedure to be abandoned in these circumstances. Their criticism of the reasons for the withdrawal itself was inoperative, since that act was not challenged. The fourth plea, on the quality assessment, likewise failed. SNCB had tested each offer against its expectations, assigned a ‘+’, ‘-’ or ‘=’ per assessment element — favourable, unfavourable or acceptable respectively — and applied the announced scoring grid; that makes it possible to follow what it did and did not value. Neither the duty to state formal reasons nor any other invoked provision obliges an entity to build in advance an automatic system converting those marks into a percentage; the margin of appreciation may be exercised so long as it conforms to the grid and is applied consistently. The sub-criterion ‘exchange of information’ also survived. The applicants’ task of making up 5.76 points out of 60 on quality and 7.57 points out of 100 overall therefore fell away. The Council allowed Eurobussing Brussels’s intervention, dismissed the application for suspension, ordered immediate execution of the judgment, kept the applications to participate and the offers confidential at this stage on grounds of business secrecy, and reserved the costs and the procedural indemnity.
Why does this matter?
Two things make this judgment important, and they sit in tension. The first is the room a contracting entity has in the utilities sectors to narrow negotiations. An entity that writes into its specifications a clause allowing it, ‘during any negotiations’, to continue only with the best-ranked bidder(s) may invoke that clause even once negotiations are under way — and may confine the subject matter to price alone. In the utilities sectors there is no obligation to close negotiations with an express request for a best and final offer. That difference from the classic sectors is neither accident nor oversight: it follows from article 29 of Directive 2014/24/EU, which sets out an explicit closing rule only for the classic procedure. For bidders in the utilities sectors that means, concretely: no bell rings to announce that this is your last chance. Every offer you file may be your last — certainly where the specifications ask for your best price. The second point weighs heavier still, and it is a double-edged sword. The Council expressly accepts that in its first award decision SNCB prima facie breached equality and transparency — among other things by comparing one bidder’s third offer with the others’ second offers. Yet no sanction follows, because the withdrawal and the resumption of the procedure can remove those defects. Moreover the entity may name one defect in the withdrawal and silently correct others on resumption: the list in the withdrawal decision does not bind it. That is defensible — a procedure need not collapse over a fault that is still curable — but it sets the applicant’s bar high. Anyone returning to the Council after a withdrawal must show not that irregularities occurred, but that they are incurable: that no resumption can restore competition, or that a rule of law requires the procedure to be abandoned. That is a materially different, and far harder, burden. Finally, the judgment confirms that a qualitative assessment using plus and minus marks and a scoring grid suffices so long as the reasoning is followable and consistent. There need be no calculator behind it converting marks automatically into percentages — but an entity that applies that grid inconsistently or emptily finds itself in a very different judgment.
The lesson
As a bidder in the utilities sectors, never assume another round is coming. SNCB’s specifications expressly asked for the ‘best price’ and reserved the right to narrow negotiations to the front-runner at any time; a bidder who holds margin back in round two for a supposed round three can never deploy it. Read those clauses before you price your first offer, and if in doubt ask in writing whether this is a closing round — the answer changes your pricing. As a contracting entity this judgment is no free pass, but it is a usable template: write the power to narrow expressly into the specifications, justify the narrowing with figures (here: the price criterion carries 40 per cent and the gap is too wide to close), and say why the qualitative aspects are exhausted. If your award is challenged and you withdraw it, note that you are not tied to the defect you named in the withdrawal: you may resume the procedure at the point where you can correct every mistake you made — and that is exactly what you should do, because a half repair leaves the second procedure vulnerable. If you are challenging a resumed procedure as the loser, shift your target: it is not enough to show that the first decision was unlawful, you must show that the resumption could not cure it, or identify a rule of law barring resumption. And do the arithmetic before you start: here the applicants had to make up 5.76 points out of 60 on quality and 7.57 out of 100 overall, and a plea that cannot bridge that gap lacks interest.
Ask yourself
Do you know, before submitting your offer, whether the specifications allow the entity to narrow negotiations to the best-ranked bidder at any moment — and do you account for the fact that there is no compulsory BAFO round in the utilities sectors? Are you holding back price margin for a round that may never come? As a contracting entity: is your power to narrow expressly stated in the specifications, and do you justify the narrowing by reference to the weighting of the criteria and the actual gap between the offers? On resuming after a withdrawal, have you corrected not only the defect named in the withdrawal but every defect you know of? And as a losing bidder: can you show that the irregularities found are incurable, and that your criticism, quantified, could actually reverse the ranking?
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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 →