Woluwe-Saint-Pierre published every price before negotiating ‘for transparency’ — and lost the rue de l’Église award
The municipality of Woluwe-Saint-Pierre published, at the opening of tenders for the redevelopment of the rue de l’Église, the record listing the overall prices of all nine bidders, then invited everyone to submit a final tender, and watched Nutons drop from 592,293.88 to 494,416.26 euros; the Council of State suspended the award under extreme urgency, because article 41, § 4 of the Act of 17 June 2016 prohibits any disclosure of tenders during negotiation — including non-confidential overall prices — and the argument ‘we chose transparency’ does not set that prohibition aside.
What happened?
At its session of 21 April 2026, the municipal council of Woluwe-Saint-Pierre decided, for contract no. 2026.083/A//2026.E061.01/VOIRIE.HE-CV concerning the redevelopment of the rue de l’Église during 2026, to use the simplified negotiated procedure with prior publication under article 41, § 1, 2° of the Act of 17 June 2016, and approved the specifications, the summary bill of quantities, the safety and health plan and the contract notice, with an estimate of 578,512.40 euros excluding VAT or 700,000.00 euros including VAT. The notice was published on 22 April 2026. Article I.11 of the specifications was unequivocal: price is the sole award criterion, and the authority chooses the economically most advantageous tender on the basis of price. On 19 May 2026, nine bidders tendered via the eProcurement platform. Nekuta bid 548,886.13 euros excluding VAT (664,152.22 euros including VAT), the lowest validly submitted tender; Nutons bid 592,293.88 euros excluding VAT (716,675.59 euros including VAT). That same day the municipality drew up a record of the opening and published it on the eProcurement platform — with the prices. On 20 May 2026 it emailed all bidders plans that had not been attached to the notice, and offered them the chance to submit a final tender by 10 June 2026 at 12 noon. Nekuta did so, with a new bill of quantities. On 18 June 2026 Nekuta contested the regularity of that second round: it had been launched by ordinary email while article I.8 of the specifications prescribed the eProcurement platform exclusively, and it accused the municipality of distorting competition by first disclosing all first-round prices and then organising a fresh round. It asked that the procedure be corrected by taking only the initial tenders of 19 May into account. That same day the municipality asked it to produce an accreditation certificate in category C class 4, which it did two hours later. On 19 June 2026 the municipality replied. It admitted the procedural illegality of the second round by email and announced a regularisation. On the publication of prices it wrote that it had ‘chosen transparency’ by disclosing the prices together with the list of bidders, and conceded that such transparency gives competitors useful information, particularly in a negotiation — but added that ‘negotiation resets the counters’ since all bidders can readjust their price. It then sent a fresh request for tenders via the platform, inviting bidders either to submit their best offer or to maintain the existing one unchanged (the award report dates that second invitation to 24 June 2026). On 25 June 2026 Nekuta replied at length, invoking breaches of article 13, § 1, first paragraph and article 41, § 4, second paragraph of the Act of 17 June 2016, of confidentiality and of equal treatment; the same day it submitted its final tender for the same amount as its initial one. On 24 June 2026 Nutons submitted a final tender of 494,416.26 euros excluding VAT or 598,243.67 euros including VAT — almost 100,000 euros below its own first bid. In the report of 26 June 2026 the municipality calculated an average of 559,410.28 euros, with 475,498.74 euros as the floor and 643,321.83 euros as the ceiling on a maximum deviation of 15 %. Two tenders were flagged as abnormally high — Les Entreprises Melin with a deviation of 29.75 % and Val Terra with 41.55 % — but because they were not in contention for the award they were neither questioned nor set aside. The final ranking on price including VAT was: Nutons 598,243.67 euros, Eurovia Belgium 656,648.35, Nekuta 664,152.22, Norre-Behaegel 664,224.96, NTH Contractors 675,474.62, Wase Wegenbouw 723,932.06, Dekempeneer 736,324.95, Melin 878,274.46 and Val Terra 958,147.99. On 2 July 2026 the college awarded the contract to Nutons and committed a credit of 700,000 euros; that same day Nekuta received the notice of non-award with the reasoned decision and the report. On 2 July it had a formal notice served by bailiff and on 17 July 2026 it applied for suspension under extreme urgency against three acts. The Council of State reduced that to one: the non-award letter causes no prejudice and is therefore not a challengeable act, the examination report is a preparatory act, and only the deliberation of 2 July 2026 by which the college adopted the report and awarded the contract causes prejudice. The municipality also contested Nekuta’s interest, since as third-ranked it would not become the beneficiary in any event. That objection was rejected: since the Act of 17 June 2013, interest within that field is no longer assessed by the prospect of an advantage from annulment — such as a fresh chance at the contract — but solely against the two conditions of article 14: having or having had an interest in obtaining the contract, and having been or risking being harmed by the alleged breaches. Nekuta had tendered and was harmed by the alleged illegalities. On the merits the Council examined only the third plea, on the publication of prices in the record of 19 May 2026. It started from article 41, § 4, first paragraph: during negotiation the authority must ensure equal treatment of all bidders and give no discriminatory information capable of advantaging some over others. It follows that it — and anyone else — is prohibited from communicating the tenders or elements of them to bidders as long as the award decision or any renunciation has not been taken, and that without any distinction between confidential and non-confidential data: whether overall prices are confidential does not even arise at that stage. The second paragraph adds the prohibition on passing on confidential information from a participant in the negotiations without his prior written consent, which may not take the form of a general waiver. As to article 13, § 1, the Council rejected the reliance on the communication of the provisional ranking: that mechanism was introduced by the Act of 22 December 2023 to improve SMEs’ access to public contracts, it is a statutory exception to the general prohibition and therefore to be construed restrictively, it applies only to contracts below the European thresholds awarded by open or restricted procedure — which excludes a simplified negotiated procedure with prior publication — and it does not in any case permit disclosing the ranking by name and in general, or the bidders’ prices. Nekuta had given no written consent. And even though all bidders received the same information, they all now knew the lowest price and thus the first-ranked bidder, and could position their final tender below it: Nekuta’s competitors thereby held privileged information that harmed it. By publishing the record with the prices, the municipality had given away the fundamental element of the tenders, since after formal admissibility and accreditation price was the sole award criterion. That prices do become known at some point changes nothing: that point is the award or the renunciation, not the negotiation stage, when tenders can still be altered. The defence that the eProcurement platform allows a record with or without prices the Council found irrelevant: it is not the record that causes prejudice but its disclosure to competitors during negotiation. And articles 83 to 85 of the decree of 18 April 2017, whose non-invocation the municipality regretted, sit in the title on award in open and restricted procedures, do not determine what the record must state about overall prices, and can in no event derogate from the statutory prohibition in article 13, § 1. The argument that negotiating is precisely about improving tenders also failed. The third plea was found prima facie serious: by communicating Nekuta’s overall price to its competitors during the negotiation, the municipality breached articles 10 and 11 of the Constitution, articles 4, 13 and 41 of the Act of 17 June 2016 and the principle of equality. The Council ordered suspension of the award decision of 2 July 2026 and immediate execution of its judgment, dismissed the application for the remainder, kept the designated documents confidential at this stage, and reserved the costs, including the procedural indemnity.
Why does this matter?
This judgment touches a practice many authorities follow in good faith: posting the record of the opening with the prices on eProcurement, because the platform allows it and because openness seems self-evidently good. In an open procedure below the European thresholds with price as the sole criterion, the legislature has even made room for that since 2023, though confined to the individual and provisional place in the ranking. In a procedure with negotiation the same act is fatal. The Council of State reads article 41, § 4 as an absolute prohibition on disclosure running until the award or the renunciation, and it does so without the detour through confidentiality: whether or not overall prices are confidential, they may not be out in the open during negotiation. That is the sharpest lesson here, because that is exactly where defences usually go astray — the municipality argued that overall prices are ‘not as such covered by confidentiality’, and that answer misses the question. Equally usable is the rebuttal of the intuitive counter-argument that negotiation resets the counters. Formally everyone gets the same chance to improve; materially everyone now knows what to undercut, and that hits first the bidder who had calculated most keenly at the outset. Nekuta gave away its lowest price and slid from first to third, while Nutons dropped almost 100,000 euros. Protecting equality of opportunity therefore also protects the advantage of a careful first tender. Finally, the judgment confirms two procedural points that save time in practice: a non-award letter and an examination report are not challengeable acts — only the award decision itself is — and a third-ranked bidder does have standing, because article 14 of the Act of 17 June 2013 no longer requires a concrete prospect of winning the contract. The municipality’s admission of the first procedural error, and its attempt to correct it with a fresh round via the platform, did not help in the end: the first error — disclosing the prices — could no longer be erased by any regularisation.
The lesson
If you negotiate as an authority, in whatever variant, disclose nothing about the tenders before your award or renunciation decision: no overall prices, no ranking, no names attached to amounts, to anyone. So do not publish the record of the opening with prices in those procedures, even if the platform technically allows it and even if nobody asks. The exception the Act of 22 December 2023 created for SMEs gives you no cover: it applies only below the European thresholds, only in an open or restricted procedure, and it permits at most telling each bidder his own provisional place — not the list, not the prices. If you do want to use or pass on confidential information from a bidder, you need his prior written consent for precisely defined data; a general waiver does not exist. And do not count on regularisation: correctly relaunching a second round via the platform does not erase the earlier disclosure of prices. If you are a bidder and you see the prices of a negotiated contract appear before the award, you hold a serious plea — react in writing, at once, and record that you gave no consent to that disclosure. Direct your application against the award decision itself, not against the non-award letter or the examination report, which cause no prejudice. And do not be deterred by not being ranked second: since the Act of 17 June 2013 it is enough that you had an interest in obtaining the contract and that the alleged illegality has harmed or risks harming you.
Ask yourself
Do you publish the record of the opening with prices in your negotiated procedures, or do you keep them to yourself until the award or renunciation decision? Do you know that the prohibition in article 41, § 4 draws no distinction during negotiation between confidential and non-confidential data, so that the question whether overall prices are confidential does not arise? Have you checked whether the exception in the Act of 22 December 2023 applies to your procedure at all — below the European threshold and open or restricted — and do you realise it covers only a bidder’s own provisional place, not the named ranking or the prices? Do you hold a prior, written and specific consent for every confidential item you wish to use? And as a bidder: did you react in writing immediately when prices became visible during the negotiation, and is your application directed against the award decision itself?
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 →