Quai des Saulx in Bouillon: an authority that requires the wrong registration category in its specifications may not correct the error itself at award stage — NPA loses its contract to regional supervision
The Council of State refuses, under the extreme urgency procedure, to suspend the decision of the municipality of Bouillon to abandon the contract for the redevelopment of the Quai des Saulx and restart the procedure after the Walloon supervisory minister annulled its award: the fact that the actual nature of the works determines the required contractor registration does not mean that the contracting authority may disregard, at award stage, the category it had itself — wrongly — imposed in the procurement documents, not even in favour of the only tenderer holding the ‘right’ registration.
What happened?
The municipality of Bouillon published a works contract in the Belgian Tenders Bulletin of 4 February 2011 for the development of the public space at the Quai des Saulx: site set-up, demolition and earthworks, groundworks and paving, walls, planting, street furniture and electrics. The procurement documents required tenderers to hold a registration in class 3, category D (general building contractors). Six tenderers submitted bids: NPA SA for EUR 497,122.57, Roiseux SA together with Hons SA for EUR 499,337.64, Damilot for EUR 517,893.60, Theret et Fils SA for EUR 527,397.84, Homel Frères SPRL for EUR 541,688.88 and Krinkels SA for EUR 604,341.00. Five of them produced a category D registration. NPA did not: it enclosed registrations including category C and sub-category D1, with a note stating that ‘most of the works to be carried out fall under category C registration’ and that it therefore held the required registrations. The project designer followed that reasoning in his report: the main works fell under category C, the category D works were ancillary, and the structural works (walls) belonged rather to sub-category D1, for which NPA was registered. He relied on a passage from lawyer Patrick Thiel’s 2011 Mémento on public procurement and on a judgment of the Ghent Court of Appeal of 30 January 2009: where the authority wrongly states a registration category in the specifications, one must look at the actual nature of the works. On 20 April 2011 the municipal board awarded the contract to NPA as the lowest regular bid. The municipality sent that decision to the supervisory authority, and on 14 June 2011 the Walloon Minister for Local Authorities and the City annulled the award. According to the minister, the municipality had knowingly awarded the contract to a company not registered in the correct category, whose candidacy should have been rejected under the qualitative selection. If the municipality had erred on the category, it should have published a corrigendum or, if that was no longer possible, restarted the procedure; under no circumstances could it award on the basis of provisions not included in the procurement documents. On 15 June 2011 the municipality abandoned the award and decided to restart the procedure, partly because the Walloon administration (DGO5) did not share the view expressed in the Mémento and the error had only been discovered when the bids were opened. NPA applied on 1 July 2011 for suspension of both decisions under the extreme urgency procedure. The acting president of the 6th vacation chamber, councillor David De Roy, rejected the application on 13 July 2011, on the concurring opinion of auditor Delvax. Against the supervisory decision, the application failed at the outset: such a decision is not a decision of a contracting authority within the meaning of Articles 65/14 and 65/15 of the Law of 24 December 1993, so the ordinary conditions of Article 17 of the coordinated laws applied, including serious harm that is difficult to repair — which NPA did not demonstrate. The Council could nevertheless review the legality of the supervisory decision incidentally under Article 159 of the Constitution, since the annulment was a factual ground for the municipality’s decision. The municipality’s objection that NPA lacked standing was rejected: if the supervisory decision were unlawful, the original award to NPA would revive. On the merits NPA failed. Even if the actual nature of the works determines the required registration, it does not follow that the authority may disregard the error in its own procurement documents at award stage. The minister was therefore entitled to annul the award, and after that annulment the municipality could not persist in awarding the contract to the only contractor whose registration matched the actual nature of the works. Article 18 of the Law of 24 December 1993 moreover allows the authority to abandon the contract or redo the procedure; that choice must rest on acceptable reasons, and on a first view it did here. Nor was the argument convincing that a new procedure would distort competition because all tenderers knew each other’s prices: Article 18 does not exclude this, and since the municipality would logically require a different registration in the new procedure, other contractors would likely compete and some earlier tenderers drop out. Costs were reserved.
Why does this matter?
An error in the required registration category may look like a detail, but it goes to the heart of competition: the wording of the specifications determines who feels invited to bid. Requiring a general building contractor (category D) deters road and civil engineering contractors (category C) — and they might well have offered a better price. That is why the authority may not quietly correct a mistake at award stage, even if the correction reflects the ‘right’ legal analysis. The judgment shows that the argument drawn from the Ghent Court of Appeal case law (the actual nature of the works is what counts) was not enough in these suspension proceedings: the Council accepted that the supervisory authority annulled the award because it rested on provisions not included in the procurement documents, which the minister regarded as a breach of transparency and equal treatment. The judgment also contains two procedural lessons. A supervisory decision annulling an award does not fall under the special suspension regime for public procurement, so the applicant must show serious harm that is difficult to repair; but its legality can be reviewed under Article 159 of the Constitution in the action against the municipality’s implementing decision. And the fact that all prices are known after a first procedure does not prevent the authority from restarting it. The judgment dates from the old legislation (Law of 24 December 1993), but its reasoning remains relevant under the current rules on the freedom not to award and on the authority being bound by its own procurement documents.
The lesson
For contracting authorities: check before publication that the required registration category and class match the actual nature and scale of the works. If you discover an error during the bidding period, publish a corrigendum; if you only discover it when the bids are opened, there is little choice but to restart the procedure. Never award on the basis of a selection requirement you had in mind but did not include in the procurement documents. For tenderers: if the specifications require a registration you do not hold, even if you are convinced it does not fit the works, raise the question before submitting, so the authority can correct it. A note in your bid correcting the specifications may win you the contract, but may also lose it as soon as the supervisory authority or a competitor intervenes. And anyone seeking suspension of a supervisory decision must show concrete serious harm that is difficult to repair.
Ask yourself
As a contracting authority, have you checked that the required registration category matches the main works of the contract, rather than ancillary items? Do you know how to correct an error in the procurement documents during the bidding period, and when it is better to restart the procedure? As a tenderer: do you raise a question before submitting if you consider a selection requirement in the specifications incorrect, rather than correcting it yourself in your bid? Do you realise that an award to a non-compliant tenderer can be annulled by the supervisory authority, even without a complaint from a competitor? If you challenge a supervisory decision, can you demonstrate concrete serious harm that is difficult to repair? Do you take into account that the authority may restart the procedure, even though everyone knows the first-round prices?
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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 →