FWB may validly abandon SEPPT contract after finding both offers irregular
Claim rejected: the FWB could validly abandon the SEPPT contract after finding, in a third sufficiently motivated decision, that Cohezio's offer was, like CESI's, affected by a substantive irregularity and that the disputed award criterion needed revision.
What happened?
The French Community launched in May 2023 a service contract for the designation of an external service for prevention and protection at work (SEPPT) for all its services, through a directly negotiated procedure with prior publication and European publicity. The contract takes the form of a four-year framework agreement, awarded on the basis of best quality-price ratio (300 points). The third award criterion ('deadlines and availability', 25/300 points) contains 12 sub-criteria, of which sub-criteria 2 to 4 concern deadlines for transmission of health evaluation forms and updating of the IT interface, expressed in hours, 'from the end of the health evaluation appointment'. The scoring formula provides Cmax × (Mmin/M). Only two tenderers submitted offers: Cohezio and CESI. CESI proposed zero delays for sub-criteria 2-4, Cohezio proposed 0.02 hours (1.2 minutes, specifying '1 min after the end of the examination'). On 10 November 2023, the contract was awarded to CESI. By ruling no. 258,355 of 8 January 2024, the Council of State suspended this award: a zero delay is impossible since the transmission and update operations must take place after the end of the appointment according to the specifications, the formula (0/0) is mathematically inapplicable, and CESI's offer was affected by a substantive irregularity under Article 76, §1. On 9 January 2024, the FWB withdrew the award decision. On 19 January 2024, the FWB adopted two decisions: extension of the existing contract with Cohezio until 31 December 2024, and abandonment of the procedure with five grounds. By ruling no. 259,137 of 14 March 2024, the Council suspended the abandonment: the grounds were either inaccurate (expiry of offer validity period, insufficient time for new analysis) or insufficiently motivated (impossibility of postponing execution, wish to revise documents, wish to broaden competition). The Council specified that the motivation requirement must be reinforced given the particular circumstances (only two offers, Cohezio's offer declared regular, January 8 ruling requiring rejection of CESI). On 5 April 2024, the FWB withdrew this decision. On 26 April 2024, the FWB adopted a third abandonment decision with much more detailed motivation. Two determining grounds were invoked. First ground: the wish to revise the third award criterion — the FWB explains in detail that the criterion as drafted does not allow meeting its needs while respecting competition, since both tenderers propose identical transmission systems (automatic transmission and updates during the appointment) but strict application would lead to rejecting an offer solely because the doctor was instructed to wait until the end of the appointment to 'click' the button operating the transmissions. Second ground (new): the irregularity of Cohezio's offer — following a new analysis, the FWB finds that Cohezio, like CESI, provides for transmission and updates during the health evaluation appointment, in violation of the starting point for deadlines imposed by the specifications. Ruling no. 259,137 had clarified that the Council had not ruled on the regularity of Cohezio's offer and therefore had not required it to be declared regular. The Council examines the single ground and finds that both motives are prima facie accurate, relevant and legally admissible. Each alone justifies the abandonment. Cohezio demonstrates neither manifest error of assessment, nor violation of the equality principle, nor disregard of the separation of powers or res judicata. The suspension request is rejected.
Why does this matter?
This ruling illustrates the reinforced motivation requirements applicable to abandoning a contract when the Council of State has previously suspended earlier decisions. The contracting authority retains its discretionary power to abandon even after two suspensions, but the formal motivation must be reinforced to exclude any risk of arbitrariness. The Council confirms that a contracting authority may, when remaking its act, conduct a new analysis of the regularity of an offer previously declared regular and conclude it is irregular — the authority of res judicata attached to the suspension ruling does not require confirming the regularity of an offer that the Council itself did not examine. An inadequately drafted award criterion producing inadequate results can by itself justify abandoning the procedure.
The lesson
When the Council of State suspends an abandonment decision: correct the grounds invalidated by the Council and enrich the formal motivation in detail — do not simply rephrase the same insufficient grounds. The discretionary power to abandon persists after a suspension, but motivation must be reinforced to exclude arbitrariness. A contracting authority may re-examine the regularity of an offer previously declared regular, even after a suspension ruling — the Council did not rule on that regularity. An inadequate award criterion that produces results contrary to the contracting authority's intention can justify abandoning the procedure.
Ask yourself
Are my grounds for abandonment accurate, relevant and admissible, set out in detailed formal motivation? Have I taken into account the lessons from previous suspension rulings by actually correcting the invalidated grounds? Have I conducted a complete new analysis before declaring an offer previously found regular to be irregular?
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 →