Council of State rejects appeals against irregularity declarations due to loss of interest — unchallenged award and non-award decisions have become final
The Council of State rejects the annulment appeals of CV LMJ Construct against the irregularity declarations of its tenders for lots 4 and 6 of a framework agreement for trailers for the federal police, because the applicant only challenged the irregularity declarations and not the non-award decision (lot 4) nor the award decision to NV A&C Noyens (lot 6), which have consequently become final, meaning that annulment can no longer lead to a chance of award.
What happened?
The federal police published a public procurement for supplies under a multi-year framework agreement for the purchase and maintenance of towing vehicles and equipped trailers. The contract comprised six lots. CV LMJ Construct submitted tenders for lots 4 and 6, among others. For lot 4 it was the sole tenderer; for lot 6 there were three tenderers. On 25 November 2022, the Minister of the Interior declared LMJ Construct's tenders for lots 4 and 6 irregular. The reason: the applicant stated that the three indicated delivery periods were 'estimated', meaning there was no binding commitment regarding delivery times. For lot 4, it was consequently decided not to conclude the contract (no regular tender). For lot 6, the contract was awarded to NV A&C Noyens, the sole regular tenderer. LMJ Construct filed two annulment appeals before the Council of State but limited the scope to the irregularity declarations only. It did not challenge the decision not to award lot 4, nor the decision to award lot 6 to A&C Noyens. The respondent raised an inadmissibility objection: since the sixty-day appeal period had expired without LMJ Construct challenging the award and non-award decisions, those decisions had become final. Even if the irregularity declarations were annulled, the contract could no longer be awarded to LMJ Construct. It had therefore lost its interest. The applicant replied that it retained an interest in having it established that it was deprived of a chance of award, particularly with a view to a possible damages claim. It further argued that the final award and non-award decisions should be set aside under Article 159 of the Constitution. The Council of State held as follows. The interest in an annulment appeal must consist in the annulment giving the applicant a renewed chance of obtaining the contract. An interest merely consisting in facilitating a possible damages claim, or moral satisfaction, is insufficient to obtain annulment. Because LMJ Construct only challenged the irregularity declarations and not the award and non-award decisions, those decisions became final and the contract can no longer be awarded to it. The Article 159 argument was rejected: an individual administrative act that has become final because the appeal period has expired can no longer be challenged by way of exception, even under Article 159. This rule safeguards legal certainty and the stability of legal relationships. The objection was well-founded. The appeals were rejected. The cases were joined.
Why does this matter?
This ruling confirms two important principles. First, a tenderer wishing to challenge the irregularity declaration of its tender must simultaneously challenge the resulting award or non-award decision. Failing to do so means losing any chance of obtaining the contract once the appeal period for those decisions expires, and with it the interest in the annulment appeal against the irregularity declaration. Second, the Council of State reaffirms that Article 159 of the Constitution offers no escape route: an individual administrative act that has become final cannot be challenged by way of exception before the Council of State. The mere interest in a possible damages claim is insufficient to obtain annulment of an act.
The lesson
A tenderer wishing to challenge the irregularity declaration of its tender must always also challenge the award or non-award decision. If the appeal is limited to the irregularity declaration alone, interest is lost once the appeal period for the award decision expires. An annulment that can no longer lead to a renewed chance of obtaining the contract will not be granted — facilitating a possible damages claim does not suffice as interest in an annulment appeal. Furthermore, Article 159 of the Constitution offers no remedy: a final individual administrative act cannot be challenged even by way of exception.
Ask yourself
As a tenderer whose offer has been declared irregular: have I challenged not only the irregularity declaration but also the award decision (or the decision not to conclude the contract)? Have I filed these appeals in time, within the sixty-day appeal period? If I only challenged the irregularity declaration, am I aware that my appeal may be rejected for loss of interest? As contracting authority: have I correctly and timely notified the tenderer of both the irregularity declaration and the award or non-award decision, including mention of available remedies?
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 →