Challenge only your own exclusion and not the award, and you miss out: the extreme-urgency application of Hullbridge–De Cock against UMONS is inadmissible
The temporary association Hullbridge–De Cock sought, under extreme urgency, only the suspension of the decision declaring its bid for the renovation of 104 student rooms at the University of Mons irregular; but because it did not challenge the award to a competitor in time, it no longer had any interest in that suspension — and the Council of State held its application inadmissible.
What happened?
On 3 February 2014 the University of Mons (UMONS) published in the Bulletin of Tenders a public works contract: the complete renovation of the Cité Triperie, a building with 104 student rooms, with an estimated budget of around 6 million euros. On 7 April 2014 the temporary association Hullbridge–De Cock — formed by NV Hullbridge Associated and NV Entreprises Réunies De Cock — submitted a bid. On 30 April 2014 UMONS asked it to justify the price of 69 items, requiring for each a detailed explanation of what the price covers, copies of subcontractor or supplier quotes, the technical data sheets, the implementation cost (on an hourly-rate basis) and the profit margin. The association replied in detail on 9 May 2014. On 13 June 2014 it received notification of a decision of 12 June 2014: the contract had been awarded, and its own bid had been declared materially irregular. The reasons, drawn from the bid-analysis report, criticised only 9 of the 69 justifications: certain prices were said not to match reality (speculation on expected discounts), some justifications for abnormally low prices were incomplete and did not allow the authority to assess the technical quality of the proposed materials, and for a few items — including the external joinery and the room doors — the requirements of the specifications (the U-values to be achieved and the EI 30 fire resistance of the door assembly) were not guaranteed. That same notification, based on article 8 of the Law of 17 June 2013, expressly stated two things: that the contract had been awarded, and that the association’s bid was irregular. In line with article 11, it granted a 15-day period to seek a suspension under extreme urgency before the Council of State. On 26 June 2014 the association brought such an application, but solely against the decision declaring its bid irregular. Only by fax of 8 July 2014 did it argue that its application also implicitly covered the award decision, and declared that it was extending its action to that decision if necessary. The Council of State, sitting in interim relief, rejected this on two grounds. An application may target only explicitly or precisely determined acts, not implicitly others — all the more so since the notification of 13 June identified two acts and the application named only one. Moreover, the extension to the award decision was out of time, being beyond the 15-day period. The argument that the period only runs from knowledge of the award’s reasoning failed: article 8 of the Law of 17 June 2013 lays down specific notification rules, and the notice of 13 June stated precisely that the contract had been awarded. The consequence was decisive: a party that does not seek suspension of the award decision has no interest in suspending the decision declaring its bid irregular, because the latter cannot give it back a chance at the contract. The application was therefore inadmissible. The Council also found that the third applicant, the temporary company Hullbridge–De Cock, has no legal personality, so the application was inadmissible in its regard too. The Council dismissed the application on 18 July 2014 and ordered the applicants to pay the procedural indemnity of 700 euros (233.33 euros each) and the other costs of 600 euros (200 euros each).
Why does this matter?
This judgment illustrates a trap that can cost unsuccessful bidders dearly. When an authority notifies two decisions in a single notice — the award to a competitor and the irregularity or exclusion of your own bid — it is not enough to challenge only your own exclusion. As long as the award decision stands, suspending your exclusion cannot give you back a chance at the contract; you then lack the required interest. The judgment is also strict on the object of the action: an application must designate the contested act explicitly and precisely, and a later ‘implicit’ extension to the award decision is not accepted when it falls outside the 15-day period. That the bidder wanted to challenge the award on the merits only after learning the full reasoning does not help: the Law of 17 June 2013 ties the period to the notification, not to the moment one knows all the reasons. Finally, the judgment recalls that a temporary company without legal personality cannot act in court itself — its individual members must.
The lesson
If, as a bidder, you receive a single notice containing both the award to another and the irregularity of your bid, challenge both decisions explicitly within 15 days — and certainly the award decision. Fighting only your own exclusion gives you no interest, because it cannot give you back the contract. Do not count on the period running only once you know the full reasoning: it starts at the notification as governed by the Law of 17 June 2013. Name each contested act precisely in your application; an implicit or out-of-time extension will not be accepted. If you act as a temporary association, have the members with legal personality bring the application, not the association itself. For authorities, the judgment confirms that a notice that clearly distinguishes the two decisions and states the correct remedies and time limits is safe on this point.
Ask yourself
Does the notice you received contain both an award decision and an exclusion or irregularity decision — and have you challenged both, within 15 days? Do you realise that challenging only your own exclusion gives you no interest as long as the award decision stands? Do you know that the 15-day period starts at the notification under the Law of 17 June 2013, not only once you know all the reasons? Have you designated each contested act explicitly and precisely in your application, without relying on a later implicit extension? If you act as a temporary association: are the members with legal personality bringing the application, rather than the association without legal personality?
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 →