A forgotten bid ‘deemed late’: the Council of State saves the second opening session in Assesse and dismisses Conforty’s action
When the municipality of Assesse found that the bid of NV Dimanche — duly filed on time against a receipt — had been forgotten at the first opening and then organised a second opening session, after which lot 2 (heating) was awarded to Dimanche for 542,364.29 euros excl. VAT, the competitor Conforty sought annulment, but the Council of State held that the bid, which had acquired a certain date through a receipt, could be ‘deemed late’ so as not to make the bidder bear an official’s oversight, and rejected the action.
What happened?
The municipality of Assesse launched, by open tendering (adjudication publique), a public works contract for the construction of a new town hall and the seat of the public welfare centre (CPAS), divided into two lots: lot 1 (structural works, finishing, electricity) and lot 2 (heating). NV Dimanche filed its bid by hand at the municipal secretariat on 24 June 2010, against a receipt signed by the head of the technical department. At the opening session of 5 July 2010, four bids were listed for lot 2, but not Dimanche’s: its bid had been ‘inadvertently forgotten’ in an official’s office. When Dimanche emailed the next day to ask for the results, the oversight came to light. On 12 July 2010 the municipal college decided, applying article 108 of the Royal Decree of 8 January 1996, to hold a new public opening session for lot 2 and to invite all bidders from the first session (first contested act). That second session took place on 9 August 2010; Dimanche’s bid was presented unopened and no bidder objected. On 25 August 2010 the intermunicipal body INASEP proposed awarding the contract to Dimanche as the lowest regular bidder; by decisions of 1 and 13 September 2010 the college awarded lot 2 to NV Dimanche for 542,364.29 euros (excl. VAT) or 656,260.79 euros (incl. VAT) (second and third contested acts). Conforty, a fellow bidder, sought the annulment of the three decisions with a single plea: the municipality had wrongly applied article 108, because Dimanche’s bid had not been sent by registered post as article 104, § 2 requires; according to Conforty, the contract could then only be awarded on the basis of the bids present at the first session, and the second session breached equal treatment. The Council of State found that Dimanche’s bid was in fact not late: it had been filed on time at the place stated in the specifications, against a receipt signed by the competent official (the head of the technical department), and that receipt was not alleged to be false. Strictly speaking, neither situation in article 108 applied, but so as not to make the applicant bear the official’s inadvertence, the Council deemed the bid ‘fictively late’: the regulatory provisions do not impose registered post as the only valid means of communication, and the filing had acquired a certain date through the signature of a public official acting in office. The Council also noted that no bidder present had objected at the second session, that its minutes were not alleged to be false, that the file revealed no culpable manipulation, and that the municipality could have stopped the first procedure by abandoning the contract and then relaunching it while mentioning the forgotten bid. The single plea was not founded. The Council joined the two cases, rejected the actions and ordered Conforty to bear the costs, set at 350 euros.
Why does this matter?
The judgment shows how the Council of State handles the tension between a strict rule and an innocent administrative error. The rule that a bid must reach the chair before the opening, with the only exception being a bid sent in time by registered post, serves equal treatment and certainty of date. At the same time, the Council does not wish to punish a correct bidder for an oversight that lies entirely with the authority. The solution — deeming the bid ‘fictively late’ so that a supplementary opening session under article 108 can take place — rests on two findings: filing against a receipt signed by a competent official gives a date as certain as a registered mailing, and the specifications do not prescribe registered post as the only means. The judgment is also instructive because it recalls the later, stricter line: the report to the King accompanying the Royal Decree of 15 July 2011 (articles 90 and 94) expressly provides that a late bid is refused ‘whatever the cause’, precisely to prevent abuse and safeguard equality. Under that newer regime the same reasoning would be harder to sustain. The practical message remains twofold: an authority that forgets a bid can repair the damage, but is on thin ice; and a bidder who files on time and demonstrably need not become the victim of another’s carelessness.
The lesson
If you are a bidder, make sure your bid acquires an indisputable date. Registered mail is the safest route, but according to this judgment a hand delivery against a receipt signed by a competent official equally gives a certain date — so keep that receipt carefully. If you wish to challenge a second opening session as a competitor, know that the Council can deem a bid forgotten by the authority but filed on time ‘fictively late’ and condone the second chance, especially if no one objected at the session. If you are the contracting authority and discover that a timely bid has been forgotten, article 108 (old Royal Decree of 1996) offers a way out via a supplementary opening session to which you invite all bidders together — but be aware that the later Royal Decree of 15 July 2011 is stricter and rejects late bids ‘whatever the cause’; in any event document the receipt, the minutes and the invitation of all bidders, and consider, if necessary, stopping the procedure and relaunching it.
Ask yourself
Can you, as a bidder, indisputably prove the date of your filing — through registered mail or a receipt signed by a competent official? Do you realise, as a competitor, that a bid filed on time but forgotten by the authority can be deemed ‘fictively late’, and that objecting at the opening session itself matters? Have you, as an authority faced with a forgotten bid, invited all bidders together and in writing to a supplementary opening session and drawn up the minutes correctly? And do you bear in mind that the regime has been stricter since the Royal Decree of 15 July 2011, so that a late bid is in principle refused ‘whatever the cause’?
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 →