Sport Vlaanderen withdraws the award of its food supply contract after an urgency action and retenders: specifications asking for daily prices ‘on the day after publication’ proved unclear enough to justify stopping
After S. NV challenged the award of the contract for the supply of food to the centres of Sport Vlaanderen, the agency withdrew the award, discontinued the procedure and announced a new tender because the specifications were unclear about the date of the daily prices for fresh products; the acting President of the XIVth Chamber finds that this ground prima facie supports the discontinuation and dismisses S. NV’s extreme-urgency action against that decision.
What happened?
The Flemish sports agency Sport Vlaanderen launched an open procedure, advertised nationally and at EU level, for a supply contract for food (general groceries, meat, fish) for its various centres. Price carried the most weight: 40 points for the tender price of a list of the 188 most frequently ordered products, 10 for the discount on the catalogue price and 20 for the volume discount; plus 25 points for service quality and 5 for sustainability. For fresh products (meat as a permitted option, fruit and vegetables) the specifications provided that the tenderer gives ‘the daily price of the day after the publication date of this contract’, to which a fixed discount percentage is applied; the inventory had to show the ‘normal catalogue prices’. Four tenderers submitted bids, including S. NV and S.F. NV. On 6 May 2026 Sport Vlaanderen wrote to all tenderers: ‘no reference date’ had been given for fruit and vegetable prices, and to allow ‘an objective and uniform comparison’ they were to enter the daily prices of Wednesday 29 April 2026 in an Excel file. All tenderers did so. The award report of 4 June 2026 found that S.F. NV had left the ‘fresh vegetables’ section blank because those products have a specific daily price — a substantial irregularity which, according to the report, had been regularised through the request of 6 May. On 11 June 2026 the contract was awarded to S.F. NV. S. NV, which considered itself the best regular tenderer, brought an extreme-urgency action against that award on 10 July 2026. A week later, on 17 July 2026, Sport Vlaanderen withdrew the award decision, discontinued the procedure under Article 85 of the Act of 17 June 2016 and decided to launch a new open procedure. It gave two grounds: the specifications were unclear about the date on which the daily price for fresh products had to be given, which jeopardised equal treatment of tenderers; and a retender offered the opportunity to extend the inventory with products for elite athletes. On 31 July 2026 S. NV also sought suspension of that decision. It argued that the date was ‘crystal clear’ in the specifications, that discontinuation after award is only possible for compelling reasons, that the needs of elite athletes were a mere opportunity, and that the discontinuation gave the irregular tenderer a second chance, which in its view pointed to favouritism. State Councillor Inge Vos, acting President of the XIVth Chamber, did not agree. Article 85 allows a procedure to be ended not only before the award but also between award and conclusion of the contract, without the legislature attaching conditions relating to the regularity of earlier stages; that power includes the possibility of withdrawing the award decision. The contracting authority may not act arbitrarily and must rely on sound reasons. The need to improve the specifications can be such a reason. The specifications contained no explicit date, only a reference to ‘the day after the publication date’, and further on also spoke of ‘normal catalogue prices’. The confidential documents also showed that the confusion was not limited to S.F. NV: it referred only to a ‘daily price’ in its inventory, another tenderer mentioned two different daily prices, neither relating to the day after publication, and S. NV itself had stated no date for its daily prices and stressed in its cover letter that they follow market fluctuations. The fact that the same lack of clarity had already prompted Sport Vlaanderen to send an additional request on 6 May confirmed the picture. That the discontinuation came only after proceedings had been brought does not make the ground unsound: an authority may re-examine the file in response to such proceedings. The elite-athlete ground was therefore superfluous, so that the criticism of it no longer had any interest. No breach of equal treatment was shown, and the complaint that the discontinuation was meant to give S.F. NV a new chance was characterised by the Council as a disguised plea of misuse of power unsupported by concrete evidence. The single plea was not serious; Sport Vlaanderen’s objections to admissibility did not need to be examined. The action was dismissed, with costs (a court fee of EUR 200, a contribution of EUR 26 and procedural compensation of EUR 770) borne by S. NV. In a second judgment of the same day (no. 267.557) the Council declared S. NV’s earlier urgency action against the award of 11 June 2026 devoid of purpose and inadmissible, precisely because the withdrawal had not been suspended. First Auditor Thomas Maes had given concurring opinions in both cases.
Why does this matter?
The judgment shows how strong a contracting authority’s position is once it responds to a challenge to its award by withdrawing and retendering. Article 85 requires no prior illegality: a demonstrated lack of clarity in the specifications that undermines the comparability of bids is enough. Notably, the Council does not confine itself to the wording of the specifications but checks in the bids themselves whether the ambiguity really played a role — and finds it in three of the four tenderers, the applicant included. The judgment thus follows the line of judgment 263.281 (Infrabel), where a discontinuation for unclear specifications was upheld because it had led to genuinely different pricing. For S. NV the outcome is bitter: the tenderer it wanted excluded as substantially irregular gets a new chance, and it can no longer rely on the award report underlying the withdrawn decision. Procedurally, too, the lesson is sharp: once the withdrawal stands unsuspended, the first urgency action becomes devoid of purpose, so the tenderer runs two proceedings and pays procedural compensation in the second. Anyone suspecting favouritism must expressly plead misuse of power and support it with concrete evidence; the mere fact that the selected tenderer may compete again is not enough.
The lesson
For contracting authorities: when asking for prices of fresh or volatile products, fix an explicit calendar date or an objective reference (an index, a market, a quotation), not a date tenderers must work out themselves. If it turns out after submission that tenderers read the specifications differently, ‘regularising’ through an additional request is a fragile fix; discontinuing and retendering with improved specifications usually holds up better, provided you state the ambiguity concretely in the decision and can back it up with the bids. Additional wishes, such as extending the inventory, are a welcome bonus but do not support a discontinuation on their own. For tenderers: read provisions on price references the way a competitor might read them, and raise questions during the Q&A round when in doubt. If you yourself stated no date or worded your prices vaguely, it becomes hard to argue that the specifications were ‘crystal clear’. And when bringing an urgency action against an award, bear in mind that the authority may withdraw and discontinue: aim your challenge at that new decision in time, and plead misuse of power only if you have concrete indications.
Ask yourself
As a contracting authority: does the specification state an explicit date or objective reference for every price of volatile products? As a contracting authority: does my discontinuation decision explain concretely what the ambiguity is and how it affected the comparability of bids? As a contracting authority: does the main ground support the discontinuation on its own, or am I relying on an additional wish the Council might see as a mere opportunity? As a tenderer: does my own bid state unambiguously which date or reference I used for my prices? As a tenderer: did I raise an unclear pricing provision during the Q&A round, rather than only challenging it after award? As a tenderer: can I produce concrete evidence of a purpose other than remedying a defect before I plead misuse of power?
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 →