No registered letter required below the thresholds: Renotec arrives a month late for the Poupehan bridge
Renotec believed the deadline for challenging the award of the Bouillon bridge repair to Galère (374,996.21 euros) had never started running because the Walloon Region had sent the decision by ordinary mail only, but the Council of State held that the double-notification rule of article 65/8 does not apply to this below-threshold contract — the ordinary letter of 4 September 2012 did trigger the fifteen-day period, so the action of 5 October was out of time and inadmissible.
What happened?
On 3 October 2011 the Walloon Region published an open call for tenders for the repair of the Poupehan bridge on the N893 in Bouillon. Two bidders submitted offers: Renotec and Galère. On 29 March 2012 the Region set aside Renotec's offer and awarded the contract to Galère for 374,996.21 euros including VAT. Renotec only learned of this on 21 August 2012, when the Region announced that its offer was ‘not the lowest regular offer'; at its request, the reasoned award decision followed on 4 September 2012 — by ordinary mail. Renotec filed an extreme-urgency claim on 5 October 2012, arguing, with reference to judgment no. 218.931 of 18 April 2012, that the appeal period had never started: article 65/8 requires notification immediately by fax, email or other electronic means and, the same day, by registered letter, and neither had been done. The Council of State, however, first dissected the scope of that provision. Under articles 65/3 and 65/30, articles 65/8 and 65/11 apply only to contracts subject to European publication, to works contracts whose offer amount lies between the European threshold and half of it, and to contracts where the authority voluntarily defers conclusion. None of those applied here: no European publication, an offer amount below the relevant limit, and no voluntary application. The double notification was therefore not required, the ordinary letter of 4 September 2012 counted as the communication under article 65/23, § 1 — the law attaches no sanction to sending by ordinary mail — and Renotec did not claim to have received the letter so late that the fifteen-day period had not yet expired on 4 October. The action was out of time and declared inadmissible; costs of 175 euros were charged to Renotec.
Why does this matter?
The case law Renotec invoked genuinely exists: where the authority disregards the prescribed double notification, the fifteen-day appeal period does not start running. But that mechanism presupposes that article 65/8 applies to the contract, and that is precisely where things went wrong. For contracts below the European thresholds — save for the intermediate category of works and voluntary application — the obligations of electronic and registered notification do not apply, and an ordinary letter suffices to start the clock. The judgment also pointedly recalls that the law imposes no sanction on notification by ordinary mail outside the scope of article 65/8. For practice, this means the first reflex in any deadline dispute is not the form of the notification but the question which protection regime governs the contract: the contract's value and the manner of publication determine which formalities the authority must observe and hence which arguments an applicant can draw from them. Whoever waits a month with an extreme-urgency action on the strength of a rule that turns out not to apply stands empty-handed — before any discussion of urgency or pleas.
The lesson
As an unsuccessful bidder, never count on a formal defect in the notification without first checking the scope of application: the double-notification rule and the standstill period apply only to contracts with European publication, to works above half the European threshold and where the authority voluntarily applies them. If, for a smaller contract, you receive the reasoned decision by ordinary mail, assume the fifteen-day period is running and file your claim at once — if need be with a reservation about the deadline. For authorities awarding below-threshold contracts, the judgment is reassuring: notification by ordinary mail suffices to start the appeal period, although registered mail remains the most prudent way to prove the date of receipt.
Ask yourself
In every award dispute, do you first check whether the contract falls under the regime of articles 65/8 and 65/11 — European publication, offer value, voluntary application — before drawing arguments from those provisions? Do you file your suspension claim within fifteen days of notification of the reasoned decision, even when it came by ordinary mail? As an authority, can you prove the dispatch and receipt dates of your notifications? And do you realise that waiting for a stronger file can lose the case before it begins?
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 →