Council of State rejects emergency suspension request against three-year exclusion by Enabel for submitting non-authentic product sheets — filed too late
The Council of State rejected the emergency suspension request by Benin Médicaux Group against Enabel's decision to exclude the company from public procurement for three years for submitting non-authentic product prospectuses for medical equipment, because the request was inadmissible due to late filing.
What happened?
Enabel, the Belgian development agency, had issued a public procurement for the acquisition of medical equipment (SONU and NTD equipment) for healthcare facilities in three departments in Benin. Benin Médicaux Group (BMG) submitted a tender. After verification, Enabel found that the product sheets submitted by BMG for a metallic hospital bed (lot 4, item 16) and a ventilation bag (lot 2, item 14) were not authentic — the images and specifications did not match the manufacturers' documents. Enabel declared the offer irregular and gave BMG the opportunity to defend itself. After analysing the defence arguments, Enabel decided to exclude BMG from participating in its public contracts for three years under Article 69 of the Public Procurement Act of 17 June 2016. This decision was communicated by email on 2 October 2024. BMG only filed an emergency suspension request with the Council of State on 25 November 2024. The Council held that the exclusion decision was not a decision taken in the course of an award procedure within the meaning of the Remedies Act of 17 June 2013, but a general exclusion from future contracts. The suspension request therefore fell under the ordinary regime of Article 17 of the coordinated laws on the Council of State, which requires the applicant to act with all due diligence. BMG had waited almost two months after learning of the decision, demonstrating a lack of diligence. Even if the Remedies Act were applicable, the fifteen-day deadline had been far exceeded. The request was declared inadmissible.
Why does this matter?
This ruling is significant for defining the scope of the Belgian Remedies Act (Act of 17 June 2013). According to the Council of State, a decision to exclude a tenderer from future public contracts is not a decision taken 'in the course of an award procedure', even if it originates from findings made during a specific award process. This directly affects the applicable appeal deadlines and conditions: the relaxed deadline rules of the Remedies Act (requiring dual notification by email and registered mail) do not apply, and the applicant must act with all due diligence.
The lesson
A decision to exclude a tenderer from future public contracts is not a decision 'in the course of an award procedure'. Anyone wishing to challenge such a decision must act with the required diligence — waiting almost two months after learning of the decision is fatal. Do not count on the more lenient deadline rules of the Remedies Act, as they do not apply here.
Ask yourself
If I receive an exclusion decision as a tenderer: have I immediately sought legal advice and filed a claim, or am I assuming that the extended deadlines of the Remedies Act will protect me? And as a contracting authority: have I carefully motivated the exclusion decision and given the tenderer sufficient opportunity to defend itself?
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 →