More than eighty inspections already carried out on the municipality’s own order: Rixensart could no longer fall back on article 85 to abandon the contract
The municipality of Rixensart awarded its framework agreement for the periodic inspection of its equipment and installations to Procontrol on 14 May 2025, issued a written order to start on 6 June 2025, let more than eighty inspections be carried out, and then decided on 16 July 2025 to withdraw that very award, abandon the contract and launch a new procedure for 2026; the Council of State annulled that decision because article 85 of the Public Procurement Act applies only during the placement phase — and the contract was, on the municipality’s own order, already being performed.
What happened?
The municipality of Rixensart put out public contract no. 2024/16B, ‘Periodic inspections of equipment and installations — framework agreement 2025 to 2029’, under a simplified negotiated procedure with prior publication. On 14 May 2025 it decided to award lot 1 to the non-profit association Procontrol and lot 2 to another company. What happened next is the heart of the case. In a letter of 3 June 2025 the municipality expressly stated that the communication of the award decision was purely informative and could not be regarded as a contractual commitment. Three days later, on 6 June 2025, the same municipality sent a letter signed by the mayor and the director general, headed ‘Simplified negotiated procedure with prior publication 2024/16 B — Periodic inspections of equipment and installations — Framework agreement 2025 to 2029 — Lot 1 — Order to commence, year 2025’. Its wording left nothing to interpretation: ‘We hereby give you the order to commence the service performances by reference to specification 2024/16B and more particularly to point III.1.10 thereof.’ Procontrol did as it was asked. On 4 June 2025 the municipality validated its intervention schedule. Procontrol made available the digital platform provided for in its tender; on 23 June 2025 the municipality asked by email for access for its own staff. Inspections were carried out on 2 and 3 July 2025. In all, more than eighty were performed in concertation with the municipal services. On 16 July 2025 the municipality then decided to withdraw the award decision of 14 May 2025, to abandon the award of contract no. 2024/16B, to end the procedure and to relaunch a contract with a similar object, with a view to entry into force in 2026. By judgment no. 264.037 of 29 August 2025 the Council of State suspended the execution of that decision; the application for annulment is dated 31 August 2025. The sequel was remarkably quiet. First auditor Muriel Vanderhelst drew up a communication under article 11/4 of the general procedural regulation proposing annulment; it was notified to the municipality on 13 January 2026. The municipality did not request continuation of the proceedings, filed no final memorandum and did not ask to be heard. Under article 30, § 3, of the coordinated laws on the Council of State, the administrative litigation section may then annul the act; on 2 March 2026 the auditor requested the application of article 14quinquies of the Regent’s Decree of 23 August 1948, and on 3 March 2026 the registry informed the municipality that the chamber would rule on annulment unless it asked within fifteen days to be heard. It did not. In line with the general assembly judgment no. 243.249 of 14 December 2018, the Council nevertheless had to verify whether the branch found well-founded justified annulment. It did. The Council adopted the reasoning of the suspension judgment. As a preliminary point it found that the contested decision had two limbs — the withdrawal of the award and the abandonment of the contract with termination of the procedure — which were neither autonomous nor severable: one and the same decision-making process had led to both, and it was not established that the municipality had contemplated the withdrawal without the prospect of a new procedure. The act was based on article 85 of the Act of 17 June 2016: completing a procedure entails no obligation to award or conclude the contract, and the authority may abandon it or start again, if need be in another way. The legislature expressly left that possibility open not only before the award but also between the award and the conclusion of the contract — and in the latter case the right not to conclude necessarily implies the right to withdraw the award decision. That power is discretionary and exercised on grounds of expediency; the legislature attached to it no condition as to the lawfulness or regularity of the earlier phases. Every decision must nonetheless be adequately reasoned and capable of being supported by accurate and relevant grounds. The municipality did not contest the facts but maintained that the contract had not been concluded because the notification under article 88 of the Royal Decree of 18 April 2017 had never taken place — that article provides that the contract is concluded by notifying the contractor of the approval of its tender, without any reservation, through the electronic platforms, by email or fax and, on the same day, by registered mail. No standstill obligation within the meaning of article 11 of the Act of 17 June 2013 was established, and the municipality did not claim one. The Council deliberately declined to address whether a contract existed and whether it had been validly concluded — that falls outside its jurisdiction. What it did find was decisive: on the day of the contested decision, the services contract had entered a phase of performance, on the order of the contracting authority and with Procontrol’s agreement. And the legislature provides for the article 85 procedure only during the placement phase, whether that phase ran regularly or not. The municipality’s reading would moreover create legal uncertainty: it would suffice never validly to notify the award decision in order to fall back on article 85 throughout performance. However well-founded the municipality’s fears about the regularity of its award of 14 May 2025 may have been, its decision rested on an erroneous legal basis — an illegality going to the competence of the author of the act and capable of harming Procontrol. The Council of State annulled the decision of 16 July 2025 and placed the costs on the municipality: 400 euros in roll fees, 52 euros in contributions and the 770-euro procedural indemnity awarded to Procontrol.
Why does this matter?
Article 85 is a comfortable exit for contracting authorities: a procedure need not end in a contract, and until conclusion the administration may retrace its steps, even where the reason has nothing to do with an established illegality. This judgment draws the boundary of that exit sharply — not at the date of a formality, but at the reality on the ground. The municipality’s reasoning was formally impeccable: without notification within the meaning of article 88 of the Royal Decree of 18 April 2017 the contract is not concluded, so one is still in the placement phase, so article 85 is available. The Council cuts that reasoning off with an argument that reaches beyond this case: anyone following it would hand every contracting authority the key to withdrawing from a contract indefinitely by simply never notifying formally. The order to commence of 6 June 2025, signed by the mayor and the director general, and the eighty inspections performed weigh more heavily than the absence of a single letter. There is a second lesson, and it is awkward for the administration. The Council had to invent nothing here: the suspension judgment of 29 August 2025 had already found the plea serious, and the municipality then brought nothing further. It did not request continuation of the proceedings, filed no final memorandum and did not ask to be heard. The annulment therefore came through the accelerated route of article 30, § 3. A defending party that lets its file lie after a suspension is in practice opting for annulment — roll fees and procedural indemnity included. Finally, the nuance the judgment expressly draws: it does not rule on the existence or the validity of the contract. That is a matter for the civil courts. What the Council decides is narrower and stronger: the administrative-law basis chosen was the wrong one.
The lesson
If you are the contractor and, after the award, you receive an order to commence, a schedule that is validated or a request to open up your platform, document it carefully: date, signatory, reference to the specifications, and the trail of what you actually performed afterwards. Precisely those documents — a letter headed ‘order to commence’ signed by the mayor and the director general, a validated schedule, an access request by email, more than eighty inspections performed — made the difference here. Do not be deterred by an earlier letter in which the administration writes that its communication is ‘purely informative’ and entails no commitment: what happens afterwards is what counts. Nor should you be deterred by the argument that no formal notification within the meaning of article 88 took place; the Council examines whether the contract was in fact being performed, not whether the contract formally exists. As a contracting authority, keep the two phases strictly apart. For as long as you have doubts about the regularity of your award, issue no order to commence, validate no schedule and let no performance begin — because from that moment article 85 is no longer an exit and only the contractual toolkit remains. If you do want to retrace your steps, do so before you set performance in motion, reason that decision adequately and base it on accurate and relevant grounds; the power itself is discretionary, but the reasoning is reviewed. And if the auditor issues a communication proposing annulment, do not let that deadline pass: sitting still after a suspension judgment produces an annulment under article 30, § 3, plus the costs.
Ask yourself
Do you know exactly when your contract moved from the placement phase to the performance phase, and can you prove it with documents? As contractor, have you documented every order to commence, every validated schedule and every performance delivered, with date and signatory? Do you realise that a letter in which the administration says its communication is ‘purely informative’ does not prevent a later order to commence from starting performance? As a contracting authority: do you refrain from issuing an order to commence for as long as you still have doubts about the regularity of your award decision, and do you know that article 85 is closed to you thereafter? And do you respond in time to an auditor’s communication proposing annulment, or do you let the case be decided by default?
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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 →