Contract modification
Modifications to an ongoing contract are only permitted to a limited extent. Substantial modifications in principle require a new procurement procedure. The Council of State examines whether modifications remain within the legal boundaries.
Een bijakte bij een bestaande raamovereenkomst is geen nieuwe gunning
De Raad van State verwerpt een vordering tegen de inzet van een naburige dienstverlener onder een bestaande raamovereenkomst voor takeldiensten, omdat wijzigingen tijdens de uitvoering van een contract buiten zijn rechtsmacht vallen zolang de opdracht niet wezenlijk verandert.
Asking for a tariff exemption after award: the Council of State sends you to the civil courts
The Brussels CPAS got no relief at the Council of State when it asked Bruxelles-Propreté to apply a tariff exemption during negotiations and after award – the Council declared itself incompetent: both refusals are civil matters, not administrative ones.
Concession or public contract? The difference comes down to one question: who loses money if the market collapses?
The Council of State rejects Clear Channel's extreme-urgency suspension against the award to JCDecaux of the Antwerp concession for 150 city advertising signs (8 years, 85% price / 15% sustainability) because the operational risk lies entirely with the concessionaire — who must invest in the infrastructure, pay an annual retributie even for signs without advertisers, and bear what the Court of Justice calls 'the whims of the market'.
If you don't request continuation after a suspension, your decision is annulled automatically — AGB Deinze let its theatre-seats award be annulled without a fight
AGB Deinze tried to award a sub-lot for theatre seats as 'additional works' to the main contractor Strabag, was suspended in October 2019, and three months later saw the entire award annulled because it failed to request continuation of the proceedings.
A selected candidate who fails to submit a first offer is in principle out of the race — unless the contracting authority fully reopens phase two with a fundamentally amended specification
The Council of State rejects the suspension of the award of the Zorg Leuven central kitchen contract to Compass Group, because the contracting authority did not 'continue' phase two of the negotiated procedure but fully halted and reopened it with a fundamentally amended specification — allowing the other selected candidate (who had not submitted a first offer) to participate again.
The 15% threshold of article 37 applies per lot — not per project. And theatre seats are not 'extra work' to a structural-build contract
The Council of State suspends AGB Deinze's decision to award sub-lot 8 (theatre seats, €219,359.80) — after a failed procurement procedure — 'as extra work' to the structural-build main contractor Strabag, because the 15% margin of article 37 of the Royal Decree on the General Rules of Execution 2013 must be calculated on the originally awarded lot, and supplying theatre seats is moreover a substantial extension of a contract for 'architecture and stability'.
Waiting for an 'implicit modification decision' until you read in the press that the winner brings a new partner — that's 60 days too late
Inter Real Estate Trusty waited two and a half months after being notified that its bid for the sale of the Muntcentrum had been rejected, then read in the newspaper that the winning consortium WCCS had brought Immobel on board, and tried to file an extreme-urgency challenge against an 'implicit modification decision' — the Council dismisses both the original decisions as out of time and the implicit modification as non-existent.
A police HQ from 8 to 12 million euros: the Council of State refuses to rule on amendments when the 'in house' arrangement was never put on paper
Four members of the Boraine police council challenge a 550,000 EUR amendment and a 11.8 million EUR final account for a police HQ in Colfontaine originally awarded for 8 million; the Council of State declares itself incompetent because the 'in house' delegation to IDEA was contractual — even though the contract was only signed 18 months AFTER provisional acceptance.
An 'amendment' of €270,000 per month to a €4,965-per-month contract isn't an amendment — it's a new contract
The State Secretary for Asylum and Migration signs an 'amendment' to an existing FEDASIL security contract and in reality awards a new contract without publication, without a reasoned award decision, for a different building, at a monthly amount exceeding the entire original contract.
If you request documents via both freedom-of-information and art. 877 Judicial Code, you implicitly pick one track
The Council of State declares itself incompetent to rule on Jérouville's appeal against SRWT's partial refusal to provide documents about modifications to the Charleroi metro contract, because Jérouville was already requesting the same documents via art. 877 of the Judicial Code in her damages procedure before the Namur court.
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This page shows all rulings of the Council of State (Belgium's supreme administrative court) on contract modification in public procurement. Each ruling is summarized by TenderWolf in plain language, with a legal lesson and a practical question to ask yourself. View all rulings →