Annulment appeal against award of design-build swimming pool contract in Ypres inadmissible due to late filing – sixty-day time limit runs from dispatch of notification, not from receipt
The Council of State rejected the annulment appeal by the temporary association NV A. and BV L. against the award by AGB Vauban of the public works contract 'Design and Build of a swimming pool in Ypres' as inadmissible due to late filing, because the sixty-day time limit under Article 23 of the Act of 17 June 2013 begins to run from the day after dispatch of the notification — in this case 9 February 2024 — and not from receipt of the registered letter on 12 February 2024, making the application filed on 10 April 2024 one day late.
What happened?
AGB Vauban tendered a public works contract for the design and construction of a swimming pool in Ypres through a competitive procedure with negotiation. On 5 February 2024, AGB Vauban awarded the contract to a third party. On 9 February 2024, the applicants were notified by registered letter and email on the same date, with the award decision and report attached. The applicants received the registered letter on 12 February 2024. The application was filed electronically on 10 April 2024. The respondent raised an inadmissibility objection based on late filing. The Council, following the auditor's report, held that under Article 23 §1 of the Act of 17 June 2013, read with Regulation 1182/71 (referenced by Article 68 for time limit calculations), the time limit runs from the notification — i.e., the dispatch of the registered letter on 9 February 2024. Under Article 3(1) of Regulation 1182/71, the day of the event triggering the time limit is not counted. The time limit therefore started on 10 February 2024, making 9 April 2024 the last day for filing. The application of 10 April 2024 was one day late. The argument that the effectiveness principle under CJEU case law (eVigilo, C-538/13) requires the time limit to run from actual knowledge (receipt) was not followed. The appeal was inadmissible ratione temporis. Costs (€400 court fee, €24 contribution, €770 procedural compensation) were charged to the applicants, each for half.
Why does this matter?
This ruling confirms that the sixty-day time limit in public procurement under Article 23 of the Act of 17 June 2013 begins to run from the day after dispatch of the notification, not from receipt by the unsuccessful tenderer. The Act of 17 June 2013 is a lex specialis relative to the general procedural rules of the Council of State. Calculation follows Regulation 1182/71 as referenced by Article 68. The argument that the effectiveness principle from CJEU case law requires the time limit to start only upon actual knowledge (receipt) is not followed: notification in the meaning of the Act is dispatch. This means the days between dispatch and receipt of the registered letter fall at the tenderer's risk.
The lesson
The sixty-day time limit in public procurement begins on the day after dispatch of the notification (the registered letter), not on the day after receipt. The dies a quo is not counted. Count carefully: the date of dispatch by the contracting authority is decisive, not the date the registered letter is delivered to you. A difference of a few days can render the appeal inadmissible.
Ask yourself
As a tenderer: do you know when the registered letter with the notification of the award decision was dispatched — not when you received it? Have you calculated the time limit from the day after dispatch? As a contracting authority: have you properly documented the dispatch date of the notification, so you can demonstrate late filing in case of dispute?
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 →