A bidder who extended its tender too late cannot stop the withdrawal of its award: De Meteoor loses the Infrabel sleeper contract
After the Council of State had suspended the award to De Meteoor of 6 lots of concrete railway sleepers (5,400,000 euros) because it had only submitted tenders for 4 extra lots after the final submission date, Infrabel withdrew that award and discontinued the procedure in order to re-tender the lots in a new contract for 2013 — a decision De Meteoor challenged under extreme urgency, in vain: the tender documents had reserved that right for Infrabel, and after the suspension judgment there was no legitimate expectation left to invoke.
What happened?
On 19 July 2011 Infrabel launched a contract for the supply of monobloc M41 concrete railway sleepers, through a negotiated procedure with publication within a qualification system. The tender documents divided the contract into 18 lots — including 10 identical lots 1 of 20,000 sleepers each — and expressly stated that Infrabel did not undertake to order all lots. Four qualified firms received the documents: De Meteoor, Betonfabriek De Bonte, Usines Dupuis and Prefer. In its first tender of 10 October 2011 — the deadline set by the documents — De Meteoor bid for only 2 lots 1, at 51 euros per sleeper. When Infrabel asked the bidders on 19 October to also quote for 6 extra optional lots 5, De Meteoor used that letter to bid for 4 additional lots 1 as well; in its final proposal it raised its discount for 6 lots 1 to 6 euros, bringing the unit price to 45 euros. On 22 December 2011 Infrabel’s board awarded it those 6 lots 1 for 5,400,000 euros, alongside 4 lots 1 to Prefer (5,440,000 euros) and 2 lots 2 to Usines Dupuis (322,920 euros) — 11,162,920 euros in total. Betonfabriek De Bonte then obtained, by judgment no. 217.773 of 7 February 2012, the suspension under extreme urgency of the award to De Meteoor: a negotiated procedure allows tenders to be adjusted, but not the submission, after the deadline, of a tender for lots one never initially bid for — that clashes with the patere legem principle and equal treatment. On 29 March 2012 Infrabel withdrew the award of the 6 lots 1 and discontinued the procedure for those lots and the unawarded optional lots, intending to include them in a new contract for its 2013 needs, where the larger volume would allow better prices and ambiguities in the documents could be fixed. On 18 May 2012 De Meteoor sought the suspension under extreme urgency of that withdrawal and discontinuation. The Council of State found neither of its two pleas serious: through article 18 of the law of 24 December 1993 the tender documents did reserve Infrabel’s right to award only certain lots and include the others in a new contract, and the withdrawal merely accelerated what an annulment judgment following the suspension would have produced anyway — so De Meteoor had no legitimate expectation. The application was dismissed, with 175 euros in costs against De Meteoor.
Why does this matter?
The judgment shows the flip side of an award won on shaky procedural ground. De Meteoor owed its 5.4-million-euro contract to tenders it had only added after the submission deadline; once a competitor obtained their suspension, it was powerless against the authority’s logical next step — withdraw and re-tender. Legally, the Council clarifies two points. First, the scope of article 18 of the law of 24 December 1993: a clause stating that the authority does not undertake to order all lots suffices as the express reservation needed to discontinue unawarded lots and put them back into competition in a new contract. Second, the limit of legitimate expectations: a bidder whose award is suspended by the Council cannot complain that the authority ‘swiftly realises’ that suspension by withdrawing rather than awaiting an annulment. Nor does the classic objection that ‘better prices upon re-tendering’ is not a lawful ground (judgment no. 43.420 of 22 June 1993) save the applicant here: that ground did not stand alone — there was the suspension judgment, the stock situation and the wish to clarify the documents. For the practice of negotiated procedures, the core rule of the underlying suspension judgment stands: negotiating means adjusting existing tenders, not accepting new ones out of time.
The lesson
For bidders in a negotiated procedure: the flexibility covers adjusting what you submitted in time, not adding lots you never bid for. Whoever wins an award that way builds on sand: after a competitor obtains a suspension, the authority may withdraw and re-tender, and you should not count on legitimate expectations. So bid from your first tender for every lot you can handle — the other bidders here did, and they kept their lots. For contracting authorities: put the article 18 reservation (now article 85 of the law of 17 June 2016) literally in your tender documents; the clause that you do not undertake to order all lots gave Infrabel the freedom to redraw matters in an orderly way after the suspension judgment. And never justify a discontinuation solely by the hope of better prices — add a concrete, verifiable ground, such as correcting an established irregularity.
Ask yourself
Did you bid in your first tender for all the lots you want to compete for, or are you counting on fixing that later? Do you know that an authority which withdraws your award after a suspension judgment is, in the Council’s view, merely accelerating what an annulment would produce — leaving you no legitimate expectation to invoke? Do your tender documents contain the express reservation that you need not award all lots and that unawarded lots may be included in a new contract? And if you discontinue: does your reasoning carry more than the mere expectation of better prices?
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 →