One ESPD for five lots: CENEO declared Electrabel’s bids void, the Council of State suspends a 141-million-euro energy award
CENEO declared Electrabel’s bids for its 2027-2029 electricity and gas contracts void because the bidder had filed one European Single Procurement Document per contract instead of one per lot and had not completed part IV according to the prescribed template, but the Council of State found prima facie that the lots Electrabel bid for form a single group sharing the same selection criteria because the turnover threshold is cumulative, and that the authority had never actually attached the announced XML files to the procurement documents, and suspended the award decisions of 29 June 2026 for the lots concerned.
What happened?
CENEO, an energy financing inter-municipal company in Hainaut acting as a central purchasing body for its members, approved on 12 February 2026 the essential elements of two joint public contracts for 2027 to 2029: the supply of high- and low-voltage electricity (six lots) and the supply of medium- and low-pressure gas (three lots). Both were published at Belgian and European level on 31 March 2026, ran as open procedures and used price as the sole award criterion. The specifications made qualitative selection conditional on a Walloon supply licence and a network access contract, and on a minimum turnover that varied by lot — from 55,000 euros for the ‘empty dwellings’ lot to 12,500,000 euros for the low-pressure gas lot — with the express statement that a bidder tendering for several lots must reach the sum of those lots’ minimum amounts. Document 4 of both specifications provided that, where a contract is divided into lots and the selection criteria vary between them, an ESPD must be completed per lot or per group of lots sharing the same selection criteria, and announced that the authority had attached an XML file for each lot. Those XML files were not there. On 27 April 2026 a bidder asked about them on the e-Procurement forum; CENEO posted download links the same day but published no corrigendum. On 18 May 2026 three undertakings submitted bids. Electrabel tendered for lots 2, 4 and 5 of the electricity contract and lots 1 and 2 of the gas contract; at the opening it had the lowest price for each of the three electricity lots and the second lowest for the two gas lots. To each bid it attached a single ESPD for the contract concerned, together with its supply licences and turnover declarations; it had generated that ESPD using an XML file from an earlier procedure and had, instead of the global indication, filled in detailed information on the selection criteria. On 29 June 2026 the board approved the evaluation reports, which declared Electrabel’s bids void for all lots: without an ESPD per lot it was impossible to tell which lot the document related to, which in CENEO’s view amounted to the absence of an ESPD and thus to a substantial irregularity under article 76 of the Royal Decree of 18 April 2017. TotalEnergies met the same fate for electricity lots 2, 4 and 5, having reused its lot 1 ESPD. The contracts went to TotalEnergies (electricity lot 1 for 19,635,465.26 euros and gas lot 1 for 23,300,072.85 euros, excluding VAT) and to Luminus (electricity lots 2 to 6 for 19,153,303.08, 408,987.69, 42,931,977.86, 17,839,748.63 and 635,000.50 euros respectively, gas lots 2 and 3 for 17,211,865.45 and 606,850.04 euros). Electrabel served notice on CENEO on 2 July 2026, was told on 8 July that the award stood, and on 15 July filed two applications for suspension under extreme urgency. The Council joined the cases, admitted the interventions of Luminus and TotalEnergies, and rejected the plea of inadmissibility: to have an interest in the plea it is enough to show with elementary plausibility that the alleged infringements risked causing harm, and the bids had been set aside without any assessment on the merits. At the hearing Electrabel limited its action to the lots it had itself bid for. On the merits, the Council found that the only selection criterion varying by lot is the turnover requirement, and that for a bidder tendering for several lots it is aggregated into a single condition: prima facie, the lots Electrabel bid for therefore form a ‘group of lots sharing the same selection criteria’, so that a single ESPD cannot be equated with the absence of one. The second complaint — that part IV had not been completed as instructed — failed for a different reason: those instructions referred to an XML file which, contrary to the specifications, was not attached to the contract notice. The question-and-answer forum serves only to clarify the procurement documents, not to replace them; where it emerges that an announced document is missing, a corrigendum must be published. Absent that correction, the ESPDs could not be held irregular for failing to match templates that were nowhere in the procurement documents. The single plea was serious in its first two branches; the balance of interests provided no counterweight. The Council ordered the suspension of the decisions of 29 June 2026 for electricity lots 2, 4 and 5 and gas lots 1 and 2, dismissed the applications for the rest, ordered immediate execution of the judgment and reserved the costs and the procedural indemnity.
Why does this matter?
The ESPD is meant to simplify administration, but in practice it is increasingly where bids die: article 76 of the Royal Decree of 18 April 2017 deems non-compliance with article 38 substantial, and in an open procedure that means automatic nullity, with no chance to regularise. Here two major energy suppliers were about to lose five lots — holding the lowest price on three of them — over a purely documentary complaint. The judgment sets two limits against that. The first is substantive: whether an ESPD per lot is needed depends on whether the selection criteria genuinely differ between lots. Where the turnover requirement is aggregated for a bidder tendering for several lots, that bidder faces one single cumulative condition — and those lots are therefore the ‘group of lots sharing the same selection criteria’ for which the specifications themselves accept a single ESPD. The second is procedural and at least as important: an authority cannot patch a gap in its procurement documents with a post on the question-and-answer forum. That forum clarifies; it does not replace. If an announced document is missing, a corrigendum is required, and without it the authority cannot reproach a bidder for not following a template found nowhere in the documents. That CENEO had applied the same sanction to TotalEnergies did not help it: equal treatment does not make an unjustified rejection lawful. As a result the Council did not need to examine the third branch — that the Belgian nullity sanction would be disproportionate under EU law — so that question remains open.
The lesson
If you are bidding for a contract divided into lots, work out which selection criterion actually differs between your lots. If it is only a turnover threshold that is aggregated when bidding for several lots, you can argue that your lots form one group sharing the same selection criteria and that a single ESPD suffices. But the safest route remains using the authority’s own template: reusing an XML file from an older procedure cost Electrabel a suspension procedure in August. If an announced file is missing, raise it on the forum and expressly ask for a corrigendum; that corrigendum is your protection, the authority’s forum post only half so. If you are the contracting authority, the lesson is sharp: what your specifications announce must actually be in the procurement documents. If the forum reveals something missing, publish a corrigendum instead of merely posting a link. And do not mechanically prescribe ‘one ESPD per lot’ when your own selection criteria in fact operate cumulatively — you risk excluding the cheapest bid on formal grounds and losing the entire award for months.
Ask yourself
Do your selection criteria genuinely differ per lot, or are they aggregated into a single cumulative requirement when a bidder tenders for several lots? Are all the files your specifications announce — the XML templates first of all — actually attached to the procurement documents? When the forum revealed that an announced document was missing, did you publish a corrigendum or merely post a reply? Does the sanction you attach to a documentary defect outweigh the loss of the lowest price? And as a bidder: did you use the ESPD template supplied by the authority and check whether part IV had to be completed globally or in detail?
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 →