Monolingual specifications, whole procedure redone: why Infrabel could withdraw and restart the rail-signalling contract — against the wishes of its own 'winner' Yvan Paque
After Infrabel had first awarded the contract for signalling works on the Walloon rail network to Yvan Paque, it found that the notice and the specifications had been drawn up in French only — a breach of the language laws — and decided to withdraw the award and redo the procedure from scratch; the Council of State held that Yvan Paque, though initially the beneficiary, raised no serious plea against that restart and rejected its extreme-urgency suspension.
What happened?
In May 2013 Infrabel launched an adjudication for contract TR 154341, the replacement of signalling installations on the Walloon rail network in the south-east zone (including Tilleur, Flémalle Haute, Aigremont, Engis, Hermalle-sous-Huy, Amay and Huy-Statte). At the opening on 6 June 2013 six tenders came in, with the lowest corrected amounts for ELGEKA (6,342,015.76 euros excluding VAT) and HEINEN (6,643,532 euros excluding VAT); Yvan Paque stood third at 8,104,562.53 euros excluding VAT. TUC RAIL, the works management following the contract for Infrabel, asked ELGEKA and HEINEN — both well below the average — to justify their prices, but did so in French, whereas ELGEKA has its seat in the Flemish region. ELGEKA replied on 24 July 2013; its tender was nonetheless rejected as irregular, because its price justification was vague and unverifiable and certain prices, such as the hourly wage, were manifestly too low. HEINEN did not reply. On 24 October 2013 Infrabel rejected the ELGEKA and HEINEN tenders as irregular and awarded the contract to Yvan Paque for 8,104,562.53 euros. ELGEKA challenged that award for breach of the language laws: the French-language request for justification and the French-language notification breached article 41, § 2, of the coordinated laws on the use of languages in administrative matters. Infrabel then re-notified, on 22 November 2013, in Dutch, as a regularisation within the meaning of article 58 of those laws; by judgment no. 225.884 of 18 December 2013 the Council held that there was no longer any need to rule because the decision of 22 November had replaced that of 24 October. On 28 January 2014 Infrabel's board of directors decided to withdraw the award decision and, on the basis of article 18, first paragraph, of the Law of 24 December 1993, to renounce the award and redo the procedure ab initio. The reason: the contract documents had been drawn up in breach of the language laws, and given the risk that other bidders would invoke unequal treatment — ELGEKA had after all been able to adjust its tender through additional justifications — restarting was the most appropriate solution in the light of the equality principle. That was the contested act. Remarkably, the action now came from Yvan Paque, the initial beneficiary. It accepted that the withdrawal of the award was well-founded but challenged the decision not to award the contract at all and to redo it. The Council of State rejected every branch as not serious. The determining motive was not the French-language correspondence with ELGEKA, but the finding that the contract documents themselves — the notice and the specifications, 'contract documents' within the meaning of article 65/1, 13°, of the Law of 24 December 1993 — had been drawn up in French only, whereas Infrabel, as a central authority, had to draw them up in both French and Dutch under article 40, second paragraph, of the language laws. The reference in the reasoning to article 41 rather than article 40 could not mislead Yvan Paque, since it could identify the monolingual contract documents. The label 'additional justifications' was correct: it was the French-language request that was void, not ELGEKA's original justification, which it was free to draw up in its own language. The mistaken reference to article 18 instead of article 41 was of no consequence, because article 41 refers precisely to article 18 and Yvan Paque had itself cited that ground. And the board did not have to follow the proposal of 17 January 2014 to still adopt a new award decision: should ELGEKA litigate again, the lack of bilingual contract documents would have to be raised of the court's own motion and lead to annulment, so restarting was reasonable. Finally, a contracting authority does not breach the principle of good administration by renouncing a contract whose documents were drawn up in breach of the language laws, nor does it breach free competition: article 41 of the Law of 24 December 1993 expressly provides for that possibility without excluding it where bidders know each other's prices, while in a public adjudication the global prices are proclaimed publicly anyway and it is not certain the same prices will be offered for the new contract. As the plea was not serious, no balancing of interests was needed. The Council rejected the application, maintained the confidentiality of documents 13 and 15 to 18 of the administrative file, and placed the costs of 175 euros on Yvan Paque.
Why does this matter?
This judgment reverses the usual cast: it is not the rejected bidder but the initially chosen one who turns to the Council of State, because the authority takes back its award and redoes the whole procedure. The Council's answer is principled and useful. A bidder who 'won' a contract in a procedure that suffers from a fundamental defect has no protectable right to that award. And a language defect in the contract documents themselves — specifications and a notice that a central authority draws up in French only when they must be bilingual — is precisely such a fundamental defect. It affects not one bidder but the contract as a whole, and it can be raised of the court's own motion in a later action. The judgment thereby confirms two things authorities regularly underestimate. First, that redoing a procedure to correct an equality problem is a legitimate way out, expressly provided for by law. Second, that the argument 'but now all bidders know each other's prices' does not block that restart: in a public adjudication the global prices are already public, and competition is not necessarily distorted. For anyone who thinks an award is a vested right, that is a sobering but clear message.
The lesson
If you are the designated bidder in a procedure with a structural defect — for instance specifications a central authority drew up in only one national language — do not count on your award being untouchable: the authority may withdraw it and redo the contract, and your 'victory' confers no protectable right. If you challenge such a restart, aim at the real motive (here: the monolingual contract documents), not at side arguments about the label of a price justification or a wrongly cited article, because those are easily dismissed as not serious. If you are the authority — certainly a central one — draw up both the notice and the specifications bilingually from the outset; a language defect in the contract documents can be raised of the court's own motion in a later action and topple the entire award. If you discover the defect only after the opening, renouncing the award and starting over is a legitimate correction in the light of the equality principle; the fact that the prices are meanwhile known does not stand in the way.
Ask yourself
Do you realise that an award in a procedure with a structural defect confers no protectable right on you, and that the authority may withdraw and redo it? Do you know that a central authority must draw up both the notice and the specifications in French and Dutch (article 40, second paragraph, of the language laws), and that a monolingual contract document can be raised of the court's own motion in a later action? If you challenge a restart: are you targeting the real, determining motive, or side criticism that quickly falls as 'not serious'? And do you realise that the argument 'all prices are now known' does not block a legally provided restart, certainly not in a public adjudication where the global prices are already public?
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 →