Wrong legal regime, lost case: Stulens founders on transitional law over Scholengroep 15's photocopiers
Kantoorinrichting Stulens challenged, under extreme urgency, the renewed award of a contract for 35 photocopiers to Nashuatec/Ricoh, but wrongly assumed that the new remedies regime of article 65/15 applied — the contract had been published back in 2008, so it did have to demonstrate serious harm that is difficult to repair and urgency, and since the petition said nothing about either, the Council of State dismissed the claim as inadmissible.
What happened?
Scholengroep 15 Limburg Noord of the Flemish community education network launched a general call for tenders in 2008 for the rental and all-in maintenance of 35 digital photocopiers with administrator software, published in the Public Procurement Bulletin and the Official Journal of the EU of 5 September 2008. Four bidders submitted offers: Xerox, Nashuatec/Ricoh, Konica/Minolta and Stulens/Canon. On 5 November 2008 the contract went to Nashuatec/Ricoh. Kantoorinrichting Stulens challenged that award; its suspension claim was dismissed by judgment no. 189.571 of 20 January 2009, but in the annulment proceedings the auditor's report of 22 March 2012 proposed annulling the award for breach of the formal and substantive duty to state reasons — the school group had, moreover, failed to respect the weighting coefficients of the award criteria announced in its own tender specifications. Just before the hearing of 11 September 2012, the school group reconvened its jury: on 6 September 2012 it identified ‘material errors’ in the scoring and consolidated the reasoning in a more detailed report, which the board of directors approved on 10 September 2012. On 3 October 2012 the school group formally withdrew the original 2008 award and re-awarded the contract. Stulens sought suspension under extreme urgency of the 10 September 2012 decision on 28 September 2012. Its petition relied entirely on article 65/15 of the law of 24 December 1993, which exempts the applicant from proving serious harm that is difficult to repair and makes the extreme-urgency procedure mandatory. The Council of State did not follow: the Constitutional Court had, in judgment no. 105/2011, annulled the entry-into-force arrangement, so that article 65/15 took effect as early as 7 January 2010, but the contract had been published on 5 September 2008 — before that date — and under the transitional rules remained governed by the old law. Stulens therefore did have to demonstrate serious harm and extreme urgency. Its petition contained not a word on either, only the — mistaken — reference to article 65/15. The claim was declared inadmissible and dismissed.
Why does this matter?
This judgment turns not on the quality of the bids but on something that precedes it: which remedies regime applies? The law of 23 December 2009 introduced an applicant-friendly regime for public contracts — no more proof of serious harm difficult to repair, a mandatory extreme-urgency procedure — but the transitional rules tie its applicability to the date of publication of the contract, not to the date of the contested decision. That distinction proved fatal here: the contested corrective decision dated from September 2012, but the contract itself had been advertised in 2008, so the old regime continued to apply. The case also shows a second mechanism every practitioner will recognise: the contracting authority which, facing a threat of annulment after a critical auditor's report, reconvenes its jury, retakes the decision with fuller reasoning and withdraws the original award. Anyone wishing to challenge such a corrective decision must realise that the procedural rules are still those of the original contract — and that a petition built on the wrong regime collapses before any assessment of the merits.
The lesson
Before drafting a petition, check which remedies regime applies to the contract, and look at the date of publication or invitation — not the date of the decision you are challenging. If the contract falls under the old regime, devote a full exposition to the serious harm difficult to repair and to the urgency; a mere reference to article 65/15 is not enough and will cost you admissibility. For contracting authorities, the judgment illustrates that a corrective decision after a critical auditor's report — reconvening the jury, strengthening the reasoning, withdrawing the original award — can be a workable way out, although the soundness of such a confirmatory decision remained unexamined here because the case failed on admissibility.
Ask yourself
Do you know which remedies regime governs the contract you want to challenge, and have you verified it against the publication date? Does your extreme-urgency petition contain a concrete, factual exposition of the serious harm difficult to repair and of the urgency, in case the old regime turns out to apply? As an unsuccessful bidder, are you actively monitoring the annulment proceedings so that a sudden corrective decision by the authority does not catch you off guard? And as a contracting authority: do you realise that retaking an award decision with fuller reasoning does not reset the procedural clock for legal protection?
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 →