Kapsch drops out of the selection for the road-charging scheme and loses eleven days to correspondence: its extreme-urgency application comes too late
Kapsch TrafficCom finished last of seven candidates with a score of 6.27 in the ranking for the DBFMO road-charging contract and fell outside the five selected; it challenged that outcome, but first wrote letters to the contracting authority instead of going to the Council of State — the fifteen-day period ran from the notification of 19 July 2013 and expired on Monday 5 August, whereas the application was not lodged until 16 August 2013, so the claim is dismissed without any examination of the merits.
What happened?
The Finance and Budget department of the Flemish authorities published, on 23 May 2013 in the Bulletin des adjudications and on 28 May 2013 in the Official Journal of the EU, a contract notice for road charging for heavy goods vehicles. The three regions wished to introduce an ‘ecologically modulated smart’ kilometre charge, differentiated by place, time, driving behaviour and the vehicle’s environmental characteristics. The contract concerned the appointment of a single service provider which, under a DBFMO agreement, would design, build, finance, maintain and operate the system, including collecting the kilometre charges and paying them over to the regions. The Flemish Region acted as contracting authority and lead partner on behalf of the Walloon Region, the Brussels-Capital Region and SOFICO, and also as central purchasing body for BAM and the Liefkenshoek Tunnel; in time an interregional entity was to take over that role. The procedure was a negotiated procedure with publication, with the number of participants in the award phase limited to five. On 1 July 2013 seven candidates submitted a request to participate: Acrostichon Ventures B.V., the BelGoVerde consortium, Kapsch TrafficCom AG, the Traxia consortium (bpost, Autostrade per l’Italia and Thales Belgium), the T-Systems – Belgacom – Strabag consortium, the ViApia consortium, and the Xerox – Meridiam Infrastructure – CFE – Vinci Concessions consortium. All seven met the minimum requirements, so the applications were ranked in order to retain five. The Fairway consortium analysed the applications; on 16 July 2013 the selection committee unanimously established its ranking: Xerox-Meridiam-CFE-Vinci 8.80 (first), T-Systems–Belgacom–Strabag 8.40 (second), ViApia and Traxia 8.30 each (joint third), BelGoVerde 8.07 (fifth), Acrostichon Ventures 7.03 (sixth) and Kapsch TrafficCom 6.27 (seventh). Kapsch was therefore eliminated. The Walloon Government, the Brussels-Capital Government and SOFICO’s board approved the selection report on 18 July 2013, the Flemish Government on 19 July 2013. On that same 19 July 2013 the Flemish Region informed Kapsch by email and by letter that it had not been selected, enclosing a non-confidential version of the selection report. The notification expressly mentioned the possibility of suspension and annulment proceedings, the applicable statutory provisions, the fifteen-day period for an extreme-urgency suspension application and the sixty-day period for annulment, and even the email address at which the authority was to be informed of any action. Kapsch replied the same day, contesting its non-selection; the authority responded on 31 July 2013. Only then, by an application dated 14 August 2013, sent by registered post on 16 August and registered with the Council’s registry on 19 August 2013, did Kapsch bring its extreme-urgency claim. It argued that the period had begun to run only on 31 July 2013, since the selection decisions as such — those of the governments and of SOFICO’s board — had only then been communicated to it; the selection report was, after all, a separate document. The Council of State does not accept that. The notification of 19 July 2013 complied with article 65/7, § 1, 1° of the Act of 24 December 1993: it communicated the reasons for the non-selection in the form of an extract from the reasoned selection decision. The redacted passages concerned information whose disclosure would, at least at the extreme-urgency stage, harm the legitimate interests of the undertakings concerned — precisely what article 65/10 permits. And correspondence between Kapsch and the authority cannot interrupt or suspend the statutory period. The arithmetic is then simple: the fifteen-day period ran from 19 July 2013 and expired on Saturday 3 August; since the expiry date shifts to the next working day, Monday 5 August 2013 was the final day. The action brought on 16 August is out of time. The Council admits Traxia’s intervention but puts the Walloon Region, the Brussels-Capital Region and SOFICO out of the case: under article 19 of the Act of 24 December 1993 and the cooperation agreement, only the Flemish Region is the contracting authority, so that the ‘decisions’ of 18 July 2013 are prima facie not open to challenge. The case therefore no longer belongs before the bilingual chamber and is referred to the general roll — although, given the urgency and the debate already held, the chamber seised does rule. The suspension application is dismissed; the decision on the costs of the suspension application is reserved. The costs of the intervention, 375 euros, are borne by the three intervening parties, one third each.
Why does this matter?
One of the largest Belgian public contracts of the decade — the system that would later be called Viapass — and the case ends on a calendar error. That is the first lesson, and it is one that keeps repeating itself. An unsuccessful candidate has fifteen days to bring an extreme-urgency application. That period runs from the notification of the reasoned selection decision, not from the moment the candidate feels sufficiently informed. Kapsch built its defence on a distinction that was not in itself unreasonable: the letter of 19 July communicated the selection report, but not the government decisions themselves, and to test the lawfulness of those decisions it needed those documents. The Council leaves nothing of that argument standing: article 65/7 requires the reasons ‘in the form of an extract’ from the selection decision, and that had been done. The second point is equally practical: writing to the authority does not stop the clock. Kapsch protested the same day, received an answer on 31 July, and lost the race — even though it could have lodged its application within the period and could already have challenged the selection decision at that time. Anyone who wants to elicit a reasoned reply should do so alongside, not instead of, the action. Third, the judgment confirms how a joint contract works procedurally: under article 19 the parties designate a single lead partner, and only that entity is the contracting authority. The other regions’ and SOFICO’s approvals are internal acts, not challengeable decisions. Anyone who mistakes the respondent will sue authorities that are put out of the case — with all the risks that entails. Finally: redacted passages in the selection report are not a defect in the notification. Article 65/10 in fact obliges the authority to shield commercially sensitive data.
The lesson
As a candidate or bidder: the clock starts on notification, full stop. If you receive a letter setting out the reasons for your non-selection and referring to article 65/23, count fifteen days immediately and file within that period — if need be with an application you supplement later. Correspondence with the authority, however legitimate, neither suspends nor interrupts that period, and the time you lose waiting for an answer you will not get back. Calculate the expiry date correctly: if it falls on a Saturday, Sunday or public holiday it shifts to the next working day — here from Saturday 3 to Monday 5 August. Nor should you argue that you needed the underlying decisions: the law requires the reasons ‘in the form of an extract’, and redacted passages are permitted where they protect commercially sensitive information. Direct your action at the right party, too: in a joint contract only the designated lead partner is the contracting authority. As a contracting authority: do what the Flemish Region did here. State expressly in your notification the available remedies, the statutory provisions, the time limits and the address at which you wish to be informed of any action. That is not only correct — it makes your plea of inadmissibility virtually unassailable.
Ask yourself
Have you counted the fifteen-day period from the notification of the selection decision, and not from the moment you felt sufficiently informed? Do you realise that your letter of protest to the authority does not stop the clock, even if it replies on the merits? Have you recalculated the expiry date and applied the shift to the next working day? Are you directing your action at the lead partner — the only contracting authority in a joint contract — or also at parties that will be put out of the case? And as an authority: does your notification expressly state the remedies, the applicable provisions and the time limits?
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