Photocopiers in Bastogne: a letter ‘on behalf of the board’ is not a board decision — the reconfirmed award to Jacli is suspended after all
After Euro Bureautic had pointed out a calculation error in its price score and a re-examination had dropped it from second to fourth place, the Council of State suspends the new award to Jacli of the lease of 23 photocopiers for 154,248.60 euros: that decision was set out in a letter from the mayor and the town clerk ‘on behalf of the board’, while the municipal board itself had never met or decided.
What happened?
The town of Bastogne launched a general call for tenders for the long-term lease (60 months) and maintenance of 23 multifunction photocopiers in eight categories. The award criteria were price (35 points), technical capabilities (25), service and support (30) and ecology (10). Seven bids were received. On 24 June 2011 the municipal board awarded the contract to Jacli SA for 154,248.60 euros excluding VAT. Three bidders were very close: Jacli with 89.98 points, Euro Bureautic (Xerox Eurobureautic) with 89.78 and Ricoh with 89.58. The board added that Jacli alone offered a clear solution for extending the fleet and that the town had worked with it satisfactorily for years. On 1 July 2011 Euro Bureautic’s lawyer reported an error: the town had used 35,579.76 euros for its price score, whereas its bid stated 32,713.71 euros. With the correct price it would rank first. The board suspended its decision the same day. On 5 July the mayor asked for one more day because the board would meet the following afternoon. On 7 July 2011 Euro Bureautic filed a first application under the extreme urgency procedure. The same day it received a letter signed by the mayor and the town clerk ‘on behalf of the board’. The town acknowledged the calculation error: Euro Bureautic’s price score rose from 24.78 to 28.07 points. But Jacli had in turn flagged an error in the technical analysis: according to the technical sheet found online, Euro Bureautic’s WorkCentre 7775 colour device had a warm-up time of under 130 seconds, while the specifications allowed a maximum of 30 seconds. The IT department then re-assessed all technical criteria on the basis of the technical sheets rather than the statements in the bids. Result: Euro Bureautic dropped to fourth place with 69.07 points, Jacli remained first with 73.98. The town wrote that, having notified Jacli, it could no longer award the contract to anyone else unless Jacli withdrew. By judgment no. 214.710 of 25 July 2011 the Council found that the first application had lost its object. Euro Bureautic had meanwhile, on 22 July 2011, filed a new application, this time against the decision contained in the letter of 7 July. The presiding judge of the 6th vacation chamber, I. Kovalovszky, followed the concurring opinion of first auditor E. Thibaut. He first rejected two objections raised by the town. The fact that the contract with Jacli had already been concluded — below the EU thresholds no standstill period applied — did not make the application inadmissible: according to the preparatory works, the limitation in Article 65/30(3) of the Law of 24 December 1993 targets only the ordinary courts, and the Council of State rules on the award decision, not on its effects on the concluded contract. Nor was the letter of 7 July merely informative: the letter of 1 July was an administrative appeal, the board had suspended its decision for that reason, and the town had carried out a new examination going well beyond the error complained of. The letter therefore contained a new decision confirming the award of 24 June on other grounds and replacing it. On the merits, the debates showed that the board had never met or decided after the suspension. The letter, although signed ‘on behalf of the board’, was thus not notification of a board decision, and the award to Jacli had not been taken by the competent body. That plea was serious. In the balance of interests, the town argued that the photocopiers were indispensable for its administration, fire service and schools, and that it could only extend Jacli’s old fleet case by case. The Council found this unsubstantiated: no document showed urgency, the bids had been opened on 31 March 2011 with a 180-day validity period of which half had elapsed, and nothing was known about the end date of the current contract. The Council suspended the decision of 7 July 2011; costs were reserved.
Why does this matter?
This judgment closes the story that began in judgment no. 214.710, and shows how a procedure that seemed to turn against the complainant on the substance still founders on a formal defect. Euro Bureautic had a justified complaint about a calculation error, but the re-examination that followed cost it two places in the ranking. The Council does not rule on the correctness of that new technical assessment. It finds something more fundamental: a municipal award decision must be taken by the municipal board. A letter from the mayor and the town clerk ‘on behalf of the board’ is not enough if the board itself never met. The lesson reaches beyond this case: an authority that reopens the assessment after an administrative appeal or a reported error takes a new decision, which must be adopted by the competent body and properly notified. The judgment contains two further useful points. First, a contract already concluded below the EU thresholds does not automatically render a suspension application before the Council of State pointless or inadmissible; the Council rules on the award decision and leaves the effects on the contract to others. Second, a general appeal to the continuity of public service carries little weight if the authority produces no evidence and its own timeline contradicts the argument.
The lesson
For tenderers: look not only at the content of a new decision following your complaint, but also at who took it and how. A letter ‘on behalf of the board’ without an underlying board decision is a serious plea. Be aware too that complaining about one error opens the door to a full re-examination: the authority may correct other errors, including ones to your detriment. Do not be deterred by the argument that the contract has already been concluded; before the Council of State that does not make the application inadmissible. For contracting authorities: if you reopen the assessment after an administrative appeal, have the new decision formally adopted and notified by the board. A letter from the mayor and the clerk can communicate a board decision, but cannot replace it. In the balance of interests, support urgency with documents — the end date of the current contract, the condition of the equipment — and keep an eye on the bid validity period.
Ask yourself
Have you checked whether the decision following your complaint was actually taken by the competent body (the municipal board), and not merely signed by the mayor and the clerk? Do you realise that an administrative appeal against one error can lead to a full re-examination that may also go against you? Do you know that a contract already concluded below the EU thresholds does not make a suspension application before the Council of State inadmissible? Have you challenged a new decision that replaces the first one with a new application in good time? As a contracting authority: do you have a new award decision after a re-examination formally adopted by the board and properly notified? As a contracting authority: can you support the urgency of performance with concrete documents, and is that argument consistent with your own timeline?
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 →