‘Abandoning’ the contract and awarding it in the same decision: the Council of State suspends the Province of Hainaut’s fire-detection contract
On 22 September 2022 the Province of Hainaut ‘abandoned’, with express reference to article 85 of the Law of 17 June 2016, the award of a fire-detection contract to Ingelec Franquet, yet in the very same decision awarded the contract to Relaitron for 29,432.35 euros including VAT — an internal contradiction the Council of State found to be a serious plea, leading it to suspend the new award under the extreme-urgency procedure.
What happened?
Through a negotiated procedure without prior publication, the Province of Hainaut sought a contractor to install fire detection at rue Madame 15 in Tournai (specifications P/37148). The specifications required the bidder to hold a BOSEC certification or equivalent before notification of the contract. Five bids were opened on 29 November 2021, and on 9 December 2021 the provincial college awarded the contract to Ingelec Franquet of Cuesmes. Before conclusion, however, the province found that Ingelec Franquet lacked the required certification. A fresh analysis identified the bid of Relaitron of Anderlecht as the lowest regular one. On 22 September 2022 the college therefore decided to ‘abandon the award of contract P/37148 to Ingelec Franquet, in accordance with article 85 of the Law of 17/06/2016’, to cancel the 2021 budget commitments and — in one and the same decision — to award the contract to Relaitron for 24,324.26 euros excluding VAT, i.e. 29,432.35 euros including VAT. Alarmes Coquelet, ranked second, learned on 15 November 2022 that the contract had not been awarded to it, received the reasoned award decision on 21 November 2022 and applied to the Council of State on 29 November 2022. Its single plea was disarmingly simple: an authority that abandons the award under article 85 cannot simultaneously award the contract to a competitor. The province called the reference to article 85 a clerical error — it had merely wanted to withdraw the first award decision — and pointed to a similar earlier file (contract 37101) in which it had made the same ‘error’ and in which Alarmes Coquelet, then itself the beneficiary of the re-award, had not complained. The Council of State was not persuaded. There could be no clerical error: the province itself admitted it had ‘wrongly believed that article 85 applied to a mere withdrawal of a decision’. Moreover, the contested act expressly recorded the twofold intention to withdraw the first decision and to abandon the contract, and the bids’ validity period — 120 calendar days under the specifications — appeared to have long expired at the time of the re-award, with no trace in the administrative file of any requested extension. The precedent file differed too much on the facts to prove anything. Against the auditor’s contrary opinion, the Council found the plea serious, saw no obstacle in the balance of interests, and suspended the decision of 22 September 2022 with immediate execution. The bids (documents 15 to 19 of the administrative file) remain confidential at this stage; costs are reserved.
Why does this matter?
The judgment puts its finger on a confusion that arises in practice more often than one would expect: the difference between withdrawing an award decision and abandoning the contract. Article 85 of the Law of 17 June 2016 covers only the latter — the decision not to award, or to restart the procedure. An authority that wants to replace an irregular beneficiary with the next bidder in the ranking must withdraw the first award decision, not abandon the contract. The province did both at once in a single decision, and precisely that internal contradiction proved fatal. Equally important is what the Council does with the ‘clerical error’ defence: an authority that admits it misunderstood the scope of the provision it invoked cannot afterwards plead a slip of the pen. In passing, the judgment recalls a second pitfall of re-awards: the validity period of the bids. Re-awarding months after the 120 days have expired, without demonstrably requesting an extension of the bids’ binding period, is building on quicksand. Finally, the case shows that a clear, almost minimalist plea — two paragraphs in the application — can suffice to obtain a suspension under extreme urgency, even against the auditor’s advice.
The lesson
For contracting authorities: choose the correct legal instrument and name it correctly. If you want to replace an irregular beneficiary with the next regular bidder, withdraw the first award decision and give reasons for the new award — do not cite article 85, because that article means you are not awarding at all. With every re-award, also check whether the bids’ binding period is still running; if it has expired, request an extension in writing and document it in the file. For bidders: read the legal basis of every decision that affects you. A decision that simultaneously abandons the contract and awards it is internally contradictory — such a contradiction carries a serious plea within it, and the extreme-urgency procedure can then deliver quick results, even when the auditor advises otherwise.
Ask yourself
Do you know the difference between withdrawing an award decision and abandoning the contract under article 85, and what reasoning each requires? Does your decision cite the correct legal basis — and do you realise that an admitted misreading of the law cannot be brushed aside as a ‘clerical error’? Before a re-award, do you check whether the bids’ validity period is still running, and do you request an extension from all bidders if necessary? And as an unsuccessful bidder: do you systematically request the reasoned decision and test whether the legal instrument chosen matches what the authority is actually doing?
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 →