The right to be heard in public procurement procedures: recent developments and practical points of attention

The right to be heard: what does it entail?

The importance of complying with the right to be heard cannot be overstated. It strikes a balance between administrative efficiency on the one hand and the rights of tenderers on the other. It also safeguards the transparency and due diligence of the contracting authority's decision-making process.

As a general rule, a tenderer only has to be heard before a serious measure is taken on the basis of misconduct relating to that tenderer's personal conduct. Case law has further defined the scope of this principle.

The right to be heard is particularly relevant during the contract award phase of a public procurement procedure. This is the stage at which the contracting authority decides which tender best meets the award criteria.

Council of State, 17 January 2023, No. 255.523

This judgment concerns a dispute between a company that manufactures and maintains electric buses, acting as a tenderer, and De Lijn, acting as the contracting authority. The procurement specifications required the buses to be equipped with an electrically operated retractable access ramp that must not move when the doors are open. This requirement was deliberately included to ensure passenger safety while also saving space.

The tender submitted by the company contained contradictory and non-compliant technical information. The technical data sheet referred to a foldable ramp rather than the required retractable ramp, whereas other documents did mention the requested retractable ramp. De Lijn declared the tender substantially irregular pursuant to Article 74 of the Royal Decree on Special Sectors and rejected it. Before doing so, the contracting authority did not hear the tenderer, who argued before the Council of State that it should have been given that opportunity.

The Council of State rejected that argument. The decision to reject the tender related to the content of the tender itself, not to the conduct of the tenderer. The Court confirmed that it was unclear which solution was actually being offered and at what price, making it impossible to compare the tender with the other offers. The irregularity did not concern a mere clerical error, such as a mistake in transferring numerical data. Instead, it concerned essential technical information. Consequently, the right to be heard did not apply.

This judgment confirms that contracting authorities are not required to organise a prior hearing when rejecting a substantially irregular tender.

Council of State, 25 March 2025, No. 262.745

This judgment builds on the previous one. The case concerns two sister companies that each submitted a similar tender in the same procurement procedure for land surveying services. The contracting authority decided to reject both tenders as substantially irregular pursuant to Article 5(1), second paragraph, of the Public Procurement Act.

According to the contracting authority, several sufficiently plausible indications – such as identical or overlapping content in the pricing calculation, the case study and the composition of the project team – demonstrated that the relationship between the two sister companies had influenced the content of their tenders. As a result, the tenders had not been prepared independently and autonomously, thereby distorting competition.

One of the sister companies brought the matter before the Council of State, arguing that neither company had been heard before their tenders were excluded. The tenderer claimed that it had therefore been denied the opportunity to demonstrate that the tenders had in fact been prepared independently. It also had no opportunity to take corrective measures in accordance with Article 69(1), 4°, read together with Article 70(3) of the Public Procurement Act.

This time, the Council of State ruled in favour of the applicant. It held that the decision to exclude the tenders belonged to the selection stage of the procurement procedure. The contracting authority had incorrectly carried out this assessment during the examination of the regularity of the tenders, whereas the issue did not concern compliance of the tenders with the procurement documents but rather the qualities, status, relationship and conduct of the tenderers who had submitted them. The selection stage precedes the examination of the regularity of tenders. Consequently, the contracting authority should have examined the relationship between the tenderers at an earlier stage of the procedure.

In this case, the exclusion of the tender constituted a serious decision based on the personal conduct of the tenderer. Such a decision may only be taken after the party concerned has been given the opportunity to present its defence in accordance with the right to be heard, particularly since the case concerned an optional ground for exclusion.

Conclusion

Recent case law confirms that the right to be heard is an essential but clearly defined procedural safeguard. Not every adverse decision requires a prior hearing. However, where a decision is based on the conduct of the tenderer, the right to be heard becomes a fundamental guarantee. Correctly classifying the nature of the decision is therefore crucial for both contracting authorities and tenderers.

Do you have any questions? Feel free to contact our office for a consultation. Moore Law Kortrijk (formerly Ockier & Partners Advocaten) provides specialised legal advice in the fields of public procurement law, construction law, real estate law, environmental law and corporate law.