Fuzer's annulment action against Enghien telephony contract award to BE IP rejected — first plea inoperative as applicant did not contest all substantial irregularities — second plea unfounded as conformity mention constitutes adequate formal motivation — appeal deadline not yet running due to missing dual communication
The Council of State rejected Fuzer's annulment action against Enghien's decision to award the telephony renewal contract to BE IP, declaring the first plea inoperative since the applicant did not contest the substantial character of the irregularities and admitted three were well-founded (each sufficient for exclusion), and the second plea unfounded as BE IP's offer did specify colour screens and the mention of CSC conformity constituted adequate formal motivation.
What happened?
Enghien tendered telephony renewal by negotiated procedure. Fuzer's offer was excluded for seven substantial irregularities including greyscale instead of colour screens. The Council found the appeal timely because the dual communication requirement was not met. The attribution report was a non-attackable preparatory act. The first plea was inoperative: Fuzer admitted three irregularities were well-founded and did not contest their substantial character, yet each alone required exclusion under article 76 §3 AR 2017. The second plea (BE IP's offer also irregular) was unfounded: BE IP had specified colour LCD screens and the conformity mention was adequate formal motivation.
Why does this matter?
A plea that does not contest the substantial character of all irregularities is inoperative when uncontested ones suffice for exclusion. Formal motivation of offer conformity can be succinct when no difficulty was identified. Dual communication (email + registered mail) is required for the appeal deadline to start.
The lesson
Excluded tenderers: contest the substantial character of all irregularities — admitting even one renders your plea inoperative. Authorities: respect the dual communication requirement or appeal deadlines won't run.
Ask yourself
Do you contest the substantial character of all irregularities found in your offer? Did you comply with the dual communication requirement?
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 →