Same formula, second time: Council of State also suspends the award of the green-maintenance contract for the eastern motorways, with the Flemish Region no longer even defending itself
Three weeks after suspending the award of the green and cleanliness maintenance contract for the western motorways of Flemish Brabant, the Council of State suspended, for the same reasons, the award of the parallel contract for the eastern motorways (Leuven – Aarschot): the Flemish Region had rejected K.’s tender because its output of 14,000 m/day for guardrail mowing was unrealistically high ‘in view of the performance conditions and the outputs recorded in previous years’, but that wording is too vague and the historical figures had never been put to K. — and the Region filed no file and left the matter to the Council’s discretion.
What happened?
The Flemish Region tendered, by open procedure published nationally and at EU level, a services contract for the ‘Green and cleanliness maintenance of the motorways in the province of Flemish Brabant: A-roads East (D213, Leuven – D214, Aarschot)’. Five tenders were submitted, including those of K. NV and S. NV. K.’s total price was more than 15 % below the statutory average, triggering the statutory presumption of abnormality under article 36, § 4 of the Royal Decree of 18 April 2017. K. provided, on time, a detailed and documented price justification, which held up for the total price: the selling prices for staff and equipment and the disposal costs — together over 90 % of the tender amount — were checked against current market prices and found normal. Wages ‘just’ met the statutory minimums of joint committee 145.4 and were assessed as low but normal; the mark-up for overheads, profit and risk was rather high but not abnormal. For the unit prices, the Region examined every item above 1 % of the total (about 74 % of the amount) and requested justification for items 46, 51, 79, 124 and 215. Four were accepted, even though some outputs were ‘high’: 30,000 m²/day for mowing grassland on upper and lower verges (item 46), 12,000 m/day for removing overhanging branches (item 79) and 5,500 m²/day for cleaning paved surfaces along the central reservation (item 124). Item 51 — the surcharge for guardrail mowing, for which K. assumed 14,000 m/day — was judged ‘unrealistically high in view of the performance conditions and the outputs recorded in previous years’. That single item sufficed to exclude the tender as substantially irregular. On 22 July 2026 the Region awarded the contract to S. NV; by registered letter of 30 July 2026 K. learned that its tender had been excluded. On 14 August 2026 it applied for suspension under extreme urgency; the hearing took place on 9 September 2026. K. filed as a new document judgment no. 267.492 of 21 August 2026, delivered between the same parties concerning another public contract (A-roads West); the Council saw no reason to exclude it. The Region’s stance was striking: it filed no administrative file, submitted no observations and stated, by letter of 3 September 2026 and at the hearing, that it would abide by the Council’s judgment. The Council examined the statement-of-reasons plea and the transparency plea together. Prima facie, it found that the reasoning was limited to a ‘vague and stereotyped reference’ to the performance conditions combined with unexplained outputs from previous years — the same wording the award report also used to reject three items of another bidder. K. could therefore not assess, with full knowledge, whether a legal challenge made sense. Moreover, the Region did not dispute that, for those outputs, it relied on data that were neither in the procurement documents nor provided by K. Article 36, § 3, third paragraph of the Royal Decree of 18 April 2017 allows this, but only if the authority first puts the data to the bidder so that it can respond; according to the Report to the King this follows from article 69.3 of Directive 2014/24/EU and safeguards the rights of defence. That had not happened. Nor did the Region show that the duty of confidentiality under article 13, § 2 of the Law of 17 June 2016 applied: outputs actually achieved in performing an earlier contract are prima facie not a trade or business secret, nor a confidential aspect of a competitor’s tender. Since the Region put forward no adverse consequences of a suspension and the Council saw none, it ordered the suspension under extreme urgency of the decision of 22 July 2026.
Why does this matter?
This judgment is less novel than it looks, and that is precisely what makes it instructive. The legal reasoning comes straight from judgment no. 267.492 on the A-roads West contract: an authority that rejects a price justification on the basis of ‘outputs from previous years’ must say which figures these are and must first put them to the bidder. What this second judgment adds is confirmation that this was not a one-off slip but a systemic flaw in how the Region assessed abnormal unit prices — the wording appeared in a single award report for two bidders and four items, and in two separate contracts. An award report built on template sentences is vulnerable wherever those sentences appear. The judgment also shows that one rejected item can suffice to exclude a tender, but that the authority must then make its reasoning watertight for exactly that item: here four of the five items queried were accepted, and the whole exclusion hinged on guardrail mowing. Finally, the Region’s procedural stance speaks volumes. An authority that files no file and leaves the matter to the Council’s discretion leaves the applicant’s factual assertions unchallenged — the Council could assume prima facie that the data were external and had never been disclosed. For bidders facing the same authority across several contracts, it is also a lesson in re-use: a favourable judgment between the same parties may be filed as a new document.
The lesson
If you are a contracting authority, read your award report not only tender by tender but also horizontally: if the same wording recurs for several bidders, items or contracts, it very likely suffices nowhere. For each rejected item, state which output you consider realistic, which contract and year that figure comes from, and why the output offered deviates too far from it. If those data do not come from the bidder, put them to it and let it respond before you decide — confidentiality is no excuse for factual performance figures. And if a parallel decision has already been suspended, draw the consequences for your other contracts instead of waiting for a second suspension. If you are a bidder, check whether the exclusion rests on a single item and whether the reasoning for precisely that item contains more than a general reference to experience. If you already hold a favourable judgment against the same authority on a similar decision, file it: the Council does not exclude such a document when the authority could already have known of it.
Ask yourself
As an authority: does your award report use the same sentence for different bidders or items to call an output unrealistic, without figures or a source? Did you first put the external data on which you reject a price justification — your own measurements, outputs from previous contracts — to the bidder and assess its response? Do you know that outputs actually achieved in an earlier contract are prima facie not covered by the duty of confidentiality? As a bidder: does the exclusion of your tender rest on a single item, and does the decision state a concrete, verifiable reason for that item? Do you already have a judgment against the same authority on a comparable decision that you can file as a document? Do you realise that an authority that files no file and leaves the matter to the Council’s discretion in practice leaves your factual assertions unchallenged?
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 →