Partial suspension of a railway bearings contract: the minimum ten-day deadline also applies to subsequent offers in special sectors
The Council of State suspends the execution of the award decision for a railway bearings contract (121 lots out of 404) because, on the one hand, the seven-day deadline granted for submitting a third offer falls short of the minimum ten-day period provided by Article 120(2) of the Act of 17 June 2016 and, on the other hand, the formal statement of reasons is insufficient both regarding the substantial nature of the irregularity found in the offer and regarding the per-lot comparison of tenders.
What happened?
SNCB launched a negotiated procedure with prior call for competition, within the framework of a qualification system under Article 109 of the Act of 17 June 2016, for the supply of railway bearings for transmissions, axle boxes and train motors. The contract initially covered 379 lots, later expanded to 404 lots, for a duration of eight years and an overall amount of approximately EUR 21 million. Four qualified economic operators were invited to tender; three submitted a first offer. SRL T. submitted an offer for 131 lots. After a first round and a Best and Final Offer (BAFO) request in June 2023, SNCB found that for 59 lots, the minimum order quantities (MOQ) proposed by T. exceeded the estimated needs for the entire contract duration, making an objective comparison impossible. SNCB therefore organised a third offer round specifically for these 59 lots, asking tenderers to align their prices with the lowest proposed MOQ. SNCB set a seven-day deadline (6 to 13 September 2023) for submitting this third offer. SRL T. did not submit an offer within this deadline and requested an extension on 14 September — one day after the deadline had expired. SNCB refused. By decision of 23 November 2023, SNCB awarded the lots: S. received 244 lots, SKF received 107, and 53 lots were not awarded. T. received no lots. For the 23 lots on which T. had submitted a previous offer with a non-conforming MOQ, its offer was declared irregular. For the 36 lots on which T. had never submitted an offer, there was simply no offer to evaluate. For the remaining 62 lots, T.'s offer was deemed less advantageous, with an overall score of 89%. T. filed an application for suspension under extreme urgency before the Council of State. The first plea invoked a breach of Article 120(2), third paragraph, of the Act of 17 June 2016: in the absence of agreement between the contracting entity and the candidates, the deadline for receipt of tenders may not be less than ten days. The Council found that no agreement on a shorter deadline had been reached. SNCB argued that this minimum deadline only applies to first offers, by analogy with Article 38(3) of the same Act applicable to classical sectors, which explicitly refers to 'initial tenders'. The Council rejected this argument: unlike Article 38(3), Article 120(2) does not limit its scope to initial tenders. The flexibility argument relating to the special sectors regime does not allow circumventing the clear statutory text. The plea was declared serious. The second plea criticised the formal statement of reasons of the award decision. On a first grievance, the Council noted that the reasoned decision draws no formal conclusion on the existence of an irregularity or its substantial nature for the 23 lots concerned. The notification letter does not remedy this gap. On a second grievance, the Council found that the only indications provided — an overall percentage of 89% and the statement that 'the award criteria were not in your favour' — do not in any way reflect a per-lot comparison of tenders and do not enable T. to understand why its offer was not retained for the 62 lots concerned. This plea was also declared serious. The balance of interests revealed no negative consequences of the suspension that would outweigh its benefits. The Council ordered the suspension of the execution of the award decision for a total of 121 lots: 23 lots whose offer was declared irregular, 36 lots for which T. had been invited to submit a third offer without having submitted a prior offer, and 62 lots whose offer was deemed less advantageous. The application was rejected for the remainder.
Why does this matter?
This ruling settles a novel question of interpretation of Article 120(2) of the Act of 17 June 2016 on public procurement in special sectors: does the minimum ten-day deadline for the receipt of tenders apply only to initial tenders, or also to subsequent tenders within a negotiated procedure? The Council of State opts for a broad reading, based on the clear text of the provision which — unlike Article 38(3) applicable to classical sectors — contains no restriction to 'initial tenders'. It is a clear warning to contracting entities in special sectors: the flexibility of the regime does not exempt from compliance with statutory minimum deadlines. The ruling further recalls the requirements of formal reasoning regarding tender irregularity: it is not sufficient to note that a tenderer did not submit a compliant offer; the irregularity must be classified and its substantial character must be reasoned. Finally, for the comparison of tenders, a single overall percentage does not replace per-lot reasoning when the contract is awarded lot by lot.
The lesson
Strictly comply with the minimum ten-day deadline under Article 120(2) for any request for tenders in special sectors — including subsequent offer rounds. An express agreement between the contracting entity and all candidates is the only way to set a shorter deadline. Regarding reasoning, do not merely note a non-response or non-compliance: expressly draw the legal consequence (irregularity) and classify it (substantial or not), explaining why. And when comparing tenders in a multi-lot contract, provide reasoning per lot rather than a single aggregated percentage.
Ask yourself
As a contracting entity in special sectors: does the deadline I grant for submitting tenders — including successive tenders in a negotiated procedure — comply with the minimum ten days under Article 120(2), or have I reached an express agreement with all candidates on a shorter deadline? Does my award decision expressly reason the substantial nature of any irregularity found, or have I limited myself to a factual finding without legal classification? For the lots not awarded to a tenderer, does my reasoning allow understanding, lot by lot, why its offer was not retained?
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 →