Suspension of school construction contract award in Jemeppe-Sur-Sambre — obligation to formally motivate the non-negligible character of a post goes beyond mere mention and requires indication of the identification method — confidential document not communicated cannot cure motivation deficiencies — balance of interests rejected despite EU PRR funding
The Council of State suspended the Communauté française's decision to award the school construction contract in Jemeppe-Sur-Sambre to the Bemat – Les Entreprises Gilles Moury consortium and to exclude Tradeco Belgium's bid for substantial irregularity, ruling that the formal motivation of the non-negligible character of post 71.11.1.a (ORES coordination) was insufficient as neither the award decision nor the tender evaluation report notified to tenderers contained explanations on the method for identifying non-negligible posts, this method appearing only in a confidential document not communicated to the applicant, and rejecting the balance of interests despite the alleged risk of losing EU PRR funding.
What happened?
The Communauté française tendered, by open procedure on price alone, construction works for a 450-pupil primary school in Jemeppe-Sur-Sambre, funded under the EU Recovery and Resilience Plan (PRR) with a subsidy of over €7.7 million conditional on provisional acceptance by 30 June 2026. Eight bids were received. During price verification under articles 35-36 of the Royal Decree of 18 April 2017, the authority identified apparently abnormal prices across all bids and interrogated six tenderers. The identification method for non-negligible posts — a 1% threshold per trade section calculated on the legal average — was detailed in a confidential internal document (piece 11) but not in the award decision or evaluation report notified to tenderers. The report merely stated that the authority had focused on non-negligible posts. Six bids were excluded for substantial irregularity; the contract was awarded to the sole regular tenderer (Bemat – Moury consortium) for €11 million. Tradeco raised a single plea in two branches. The Council examined the second branch concerning the formal motivation of the non-negligible character of post 71.11.1.a (ORES coordination, representing 1.37% of the electrical trade section). The Council ruled that the obligation to formally motivate the non-negligible character goes beyond mere mention and constitutes a guarantee against arbitrariness. The confidential document and the observations note could not cure the motivation deficiency. The balance of interests was rejected: the authority had itself contributed to delays by missing its own intermediate deadline, and had not concretely demonstrated that losing the EU subsidy would irremediably prevent the school's construction. Suspension was ordered.
Why does this matter?
This ruling clarifies that when excluding a bid for abnormal pricing of a non-negligible post, the identification method must appear in documents communicated to tenderers — not just in confidential internal files. The qualification of a post as non-negligible is an essential element of the reasoning that tenderers must be able to verify. EU PRR funding deadlines do not automatically justify activating the balance of interests when the authority contributed to delays.
The lesson
Contracting authorities: your method for identifying non-negligible posts must appear in the award decision or evaluation report notified to tenderers — a confidential internal document is insufficient. Clearly state your threshold, rationale, and how it applies to each post. Tenderers: if excluded for abnormal pricing, verify whether the non-negligible character was formally motivated in documents you received.
Ask yourself
Does your award decision or evaluation report explain the method for identifying non-negligible posts? Can tenderers understand from communicated documents why a specific post was qualified as non-negligible?
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 →