Leuze-en-Hainaut reads ‘dense urban environment’ as ‘dense city centre’ and scores a reference zero: the selection of three candidates for two mixed-use buildings is suspended
The city of Leuze-en-Hainaut gave the architect’s reference submitted by the CBD – Architectes L.M. consortium zero out of ten on the sole ground that the project ‘is not located in a dense city centre’ — a requirement its own selection guide never imposed, since that guide asks only for a dense urban environment — and on 28 July 2026 the Council of State therefore suspended, under extreme urgency, the decision of 8 June 2026 selecting three of the six candidates for the design-and-build contract for two mixed-use buildings and the surrounding public space.
What happened?
On 26 March 2026 the city of Leuze-en-Hainaut published a contract notice in the Bulletin des adjudications for a public works contract for the ‘design/construction of 2 mixed-use buildings and public spaces’. The selection guide of March 2026 described the subject matter as a single ensemble: two mixed-use buildings (adaptable floor space and housing), private parking, and public and private outdoor works — a pedestrian link, a square, a small public plaza and collective private gardens. The city opted for a competitive procedure with negotiation in two phases: first the selection of candidates, then the award. By the closing date of 4 May 2026, six applications had been submitted, including that of the consortium formed by CBD NV and Architectes L.M. et Associés. The city’s agent, IDETA, examined the applications and drew up an analysis report with a ranking. The CBD consortium scored 47 points and came fifth out of six; only the three highest-ranked candidates went through. On 8 June 2026 the municipal college adopted the content of that report, validated the list of three retained candidates, informed the unsuccessful candidates of their elimination, and set 14 September 2026 as the deadline for tenders. The decision was notified to CBD by letter of 22 June 2026. The whole case turns on one criterion. Article 9.6 of the selection guide required the architect to submit one relevant reference for the construction or renovation of a mixed-use building or of housing, with minimum requirements of at least 2,000,000 euros of works excluding VAT and provisional acceptance within the five years preceding publication, evidenced by a reference sheet and a certificate of good execution. Article 10 capped the number of candidates at three and used all-or-nothing scoring: meeting a criterion earns the maximum, failing to meet it earns zero. Article 10.2 awarded ten points for the ‘capacity to make a building engage in dialogue with its environment and with the public space, on a site in a dense urban environment’. The notion of ‘dense urban environment’ was not itself defined, but article 10.1 did clarify that urban or peri-urban fabric means a ‘continuous and dense fabric (high concentration of built form)’. As its architect’s reference CBD submitted a scheme on the bank of the Scheldt in Antoing, facing the place du Préau, twelve kilometres from the site of the contract. The houses opposite that reference project are all two-façade terraced dwellings on plots of limited size. The analysis report quoted CBD’s own note — the intervention would form a genuine ‘gateway’ to the town, and ‘the building on the Scheldt side develops a rhythmic architectural language that accompanies the flow of the water and offers varied views over the natural banks’ — and concluded in a single line: ‘The project engages in dialogue with its environment but is not located in a dense city centre.’ The result: 0 out of 10 for that criterion and a total of 47 points. On 7 July 2026 CBD and Architectes L.M. sought suspension under extreme urgency and annulment. By an order of 8 July the case was listed for the hearing of 27 July 2026. The Council of State followed the applicants on the first branch of their single plea, and its reasoning is short and sharp. The only stated ground for the zero was that the project is not in a ‘dense city centre’ — but that is not what the selection guide requires. It does not demand a presence in a city centre, only in an urban environment, and such an environment need not form part of a central area. Moreover, the Council added, the required density is a rather subjective matter; precisely for that reason the statement of reasons of the contested act had to show sufficiently what led the city to consider that the project was not in a ‘dense’ urban environment. The grounds of the act do not allow its author’s reasoning on that point to be understood, and the explanations in the city’s observations cannot cover the gaps in that reasoning after the fact. To that extent the plea was serious. The Council ordered the suspension of the decision of 8 June 2026 and the immediate execution of its judgment. The six applications, filed confidentially by the city at the reporting auditor’s instruction, remain confidential at this stage. The Council did not yet rule on the costs, including the procedural indemnity: those are reserved.
Why does this matter?
Two classics of procurement law meet in this single judgment, and both in a directly usable form. The first is the contracting authority’s obligation to abide by its own rules — patere legem quam ipse fecisti. If your selection guide says ‘dense urban environment’, you may not read ‘dense city centre’ when you come to evaluate. The difference looks small, but it is exactly the difference between a reference in a densely built street on the edge of a town and a reference on the market square. By silently raising the bar, the city assessed the application against a standard the candidates were never shown. That goes to the heart of transparency: the criteria that count must be known in advance, and they must then actually be the criteria applied. The second is equally practical: reasoning after the fact repairs nothing. In its observations the city set out an extensive explanation of what it meant by the criterion — an urban front, dialogue with the street, treatment of urban interfaces, continuity of the built fabric. That explanation is not unreasonable in substance, but it came too late. The duty to state reasons exists precisely so that the addressee of an administrative act can judge whether and how to bring an action; a ground that only surfaces in the litigation can by definition no longer serve that function. What sharpens the judgment further is the scoring method. The guide worked on an all-or-nothing basis: meet the criterion and you get the maximum, fail it and you get zero. Such a system leaves no room for nuance and makes every individual assessment immediately decisive. An authority that chooses it also raises its own burden of reasoning: the difference between ten and zero must then appear from the statement of reasons itself, not from a one-line conclusion.
The lesson
For candidates and tenderers: place the reasons given for your elimination word for word alongside the text of the selection guide or the tender documents. In this case a single difference of wording — ‘city centre’ versus ‘urban environment’ — was enough to obtain a suspension. Whenever you score zero on an all-or-nothing criterion, ask expressly for the concrete reasons and check whether they match the criterion as published. If the real arguments only appear in the authority’s observations before the court, you can challenge them as belated reasoning. And expect short deadlines: here the decision of 8 June was notified on 22 June and the application lodged on 7 July. For contracting authorities: draft your criteria so that you can apply them literally, and then apply them literally. If you use a gradual or vague notion such as ‘dense’, ‘relevant’ or ‘comparable’, define it in the guide itself — as was done here for ‘urban fabric’, but not for ‘dense’. State concretely in the decision why the reference submitted does not qualify, with reference to the material in the file. And think twice before choosing all-or-nothing scoring: it is simple and looks objective, but it leaves no assessment error unpunished.
Ask yourself
Does your selection or elimination decision state exactly the same criterion as your guide, or has a word become stricter along the way? Can you explain, in one paragraph, for every zero on an all-or-nothing criterion what precisely was missing from the reference submitted? Does your guide define the gradual notions you use — ‘dense’, ‘comparable’, ‘relevant’ — or do you leave that to the evaluator? And as a candidate: have you compared the reasons for your non-selection word for word with the published criteria, and kept an eye on the deadline for an application under extreme urgency?
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 →