Fifteen days too late over one ambiguous sentence: Clear Channel loses the suspension of 300 Walloon bus shelters, but the SRWT pays the costs
Clear Channel filed its extreme-urgency suspension against the award of 300 passenger shelters three days after the fifteen-day standstill period and was defeated on admissibility, but because the SRWT’s notification contained the ambiguous sentence ‘the period expires on 2 December 2013’, the Council of State nonetheless places the 550-euro costs on the authority.
What happened?
The Société régionale wallonne du transport (SRWT), the umbrella company behind the Walloon TEC, launched an open call for tenders for a public supply contract for the supply and installation of 300 passenger shelters in the Walloon Region, over a maximum period of six years. By a decision of 13 November 2013 its board awarded the contract to the temporary company of Ets Philippe Bosquet, Jean Nonet et Fils and Mobile Concepts, and not to Clear Channel Belgium. The SRWT communicated the reasoned decision on 14 November 2013, by registered letter received on 15 November and by email, so that the formality of article 65/8, § 1, third paragraph, of the Law of 24 December 1993 was satisfied. Clear Channel filed its suspension application under extreme urgency only on 2 December 2013. Under article 65/23, § 3, of the same Law such an application must, on pain of inadmissibility, be filed within fifteen days. The first day of the period was 15 November 2013 — the day after dispatch — so that the last day was 29 November 2013 at midnight. The action of 2 December was therefore out of time. Clear Channel pointed out that the notification itself contained the following passage: ‘the period expires on 2 December 2013’. The SRWT replied that this sentence referred to the start date of the performance of the contract, not to the last day for filing an action before the Council of State. The Council found that article 19 of the coordinated laws on the Council of State applies only to annulment actions and that the Walloon decree of 30 March 1995 on administrative transparency contains no time limit of its own with a sanction; the period was therefore governed solely by articles 65/23 and 65/8 of the Law of 24 December 1993. Although the ambiguous mention could have misled the applicant, the finding remained that the action was filed outside the statutory period. The application was therefore declared inadmissible and the suspension refused. Yet the Council drew a costs consequence from that misleading mention: it placed the costs, set at 550 euros, on the SRWT and not on the unsuccessful applicant. The Council further admitted the intervention of the beneficiary companies and, at this stage, maintained the confidentiality of the bids received; the judgment was notified by fax.
Why does this matter?
The judgment exposes two things that often come together in tender practice. The first is the harshness of the standstill period: the fifteen days to suspend an award under extreme urgency are a forfeiture period, and three days late is late, regardless of the bidder’s good faith. The second is subtler: a notification that itself sows confusion does not go without consequence. The Council does not extend the period — it cannot — but it shifts the costs onto the authority whose letter fed the mistake. This yields a nuanced outcome that gives neither the bidder nor the authority full satisfaction: the award stands, but the authority bears the bill. For those who draft or receive notifications the message is twofold. An authority that mixes up dates and deadlines risks the costs; a bidder who relies on an ambiguous sentence instead of calculating the statutory period itself risks its entire case.
The lesson
For bidders: always calculate the appeal period yourself on the basis of the law, not on the basis of a date stated in the notification letter. The fifteen days to suspend an award start running the day after dispatch of the reasoned decision and are a forfeiture period; do not rely on a phrase that may just as well refer to the performance date. If in doubt, file in time and dispute later if necessary. For authorities: in your notification, keep the appeal period strictly separate from other dates, such as the start of performance. An ambiguous wording does not save the bidder from lateness, but it may saddle you with the costs even where you win on the merits — here 550 euros. A correct, unambiguous statement of the period, the forms and the point of contact protects both parties.
Ask yourself
As a bidder: do you calculate the appeal period yourself from the day after dispatch of the reasoned decision, or do you rely blindly on a date in the authority’s letter? Do you know that the fifteen-day period to suspend an award is a forfeiture period that not even your good faith interrupts? And as an authority: in your notification, do you clearly separate the appeal period from the performance date, and do you realise that a confusing mention can cost you the expenses, even where the action is out of time and thus inadmissible?
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 →