Annulment appeal moot for lots 1 to 10 (withdrawal and renunciation) and rejected for lot 11 — separate comparison method does not cause prejudice to applicant
The Council of State finds that the annulment appeal against IDELUX Environnement's decision to award a household waste collection contract has become moot for lots 1 to 9 (withdrawal of the award decision) and lot 10 (renunciation under Article 85 of the Act of 17 June 2016), rejects the appeal for lot 11 for lack of a serious plea, and lifts the suspension ordered by the earlier ruling no. 257,117.
What happened?
On 16 May 2023, the board of IDELUX Environnement awarded a public contract for door-to-door collection of source-sorted household waste comprising eleven lots: lots 1 to 9 to SRL Remondis Belgien and lots 10 and 11 to SCRLFS Dureco. SA Ardenne Container-Belcyco, which had submitted tenders for all lots, filed an annulment appeal and obtained, by ruling no. 257,117 of 18 July 2023, suspension of the award decision for lots 1 to 9. For lots 10 and 11, the suspension request was rejected: the plea based on the 'separate comparison' method for lots 10 and 11 was not serious because, even though this method prima facie violated Article 87(1), paragraph 5, of the Royal Decree of 18 April 2017 (requiring determination of the most economically advantageous combination of all lots taking discounts into account), this irregularity did not cause prejudice to Belcyco — Dureco had obtained the most points for these lots in every scenario, including when applying Belcyco's 1% discount. Following the suspension ruling, IDELUX Environnement took two decisions: on 28 July 2023, it withdrew the award decision for lots 1 to 9 and instructed its services to conduct additional analysis; on 15 September 2023, it renounced the conclusion of lot 10 under Article 85 of the Act of 17 June 2016. Both decisions became final as no timely appeal was filed. IDELUX maintained the award of lot 11 to Dureco. The Council of State found the appeal moot for lots 1 to 10. For lot 11, it confirmed the reasoning of the suspension ruling: the applicant had not addressed, in its reply brief, the grounds for rejection concerning lots 10 and 11, and raised no serious plea against the award of lot 11. The appeal was rejected for lot 11. The suspension ordered by ruling no. 257,117 was lifted. Costs were charged to IDELUX given the partial withdrawal.
Why does this matter?
This ruling illustrates the aftermath of a suspension under extreme urgency: partial withdrawal of the contested act (lots 1-9) and renunciation (lot 10) render the appeal moot for those lots, but the ruling remains relevant for two substantive issues. First, the method of 'separately comparing' certain lots without accounting for discounts offered for lot combinations prima facie violates Article 87(1), paragraph 5, of the Royal Decree of 18 April 2017. Second, an illegality in the lot comparison method does not suffice to obtain annulment if it causes no prejudice to the applicant: when the ranking of tenders remains unchanged regardless of the comparison scenario, the applicant lacks standing for the plea.
The lesson
Article 87(1), paragraph 5, of the Royal Decree of 18 April 2017 requires, when discounts for lot combinations are offered, determining the most economically advantageous combination of all lots, rather than 'separately comparing' certain lots. However, this illegality is only sanctionable if it causes prejudice to the applicant. Additionally, withdrawal of an award decision and renunciation of a lot (Article 85 of the Act) render the appeal moot: it is essential to challenge these new decisions within the applicable time limits to preserve one's rights.
Ask yourself
As contracting authority: when tenderers offer discounts for lot combinations, have I compared all lots together to determine the most economically advantageous combination in accordance with Article 87(1), paragraph 5? Have I avoided 'separately comparing' certain lots without acceptable justification? As excluded tenderer: does the illegality I invoke cause me concrete prejudice — would the ranking have been different absent this illegality? If the contracting authority withdraws or renounces certain lots after a suspension ruling, have I verified whether these new decisions are challengeable and within what time limits?
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 →