Fail to file your administrative dossier and you lose: the Boraine police zone sees the award of its police headquarters annulled
In the dispute over the architectural contract for the Colfontaine police headquarters, the Boraine police zone filed only a patchy administrative dossier and produced the winning tender only after its final brief; the Council of State excluded those late documents, deemed the applicants' facts proven under article 21, third paragraph of the coordinated laws, and annulled the award decision — replaced mid-procedure — for breach of equality between tenderers.
What happened?
On 19 June 2009 the Boraine police zone published a contract for the architecture and engineering mission to convert an industrial building in Colfontaine into a police headquarters. Five tenders came in, including that of the consortium Atelier 2F - T.P.F. Engineering. A first, undated selection report rejected that consortium because it had 'not provided a file allowing its financial and technical capacity to be assessed'; a comparative report nevertheless scored it 53.92 out of 110 against 72.40 for the consortium around Atelier d'Architecture Alland-Godimus, to whom the college awarded the contract on 13 November 2009. After Atelier 2F filed an annulment action on 22 January 2010, the police zone searched its own files, found a folder of selection documents and drew up a new report — this time stating that all tenderers were selected — after which the college confirmed the award to Alland-Godimus on 20 April 2010. The Council of State accepted that the applicants challenged that replacement decision in their reply brief: it had the same object as the original decision, which it had implicitly but certainly withdrawn. On the merits, the police zone's dossier proved patchy: despite an express request from the first auditor-rapporteur of 2 February 2012 to file the winning tender by 10 February, it produced it only on 25 April 2012, after its final brief. The Council excluded those documents from the debate — the applicants could no longer respond to them — and applied article 21, third paragraph of the coordinated laws: the facts invoked by the applicants were deemed proven, as they were not manifestly inaccurate. The plea alleging breach of equality between tenderers in the assessment of the offers was thereby founded. The Council annulled the decision of 20 April 2010, held that there was no longer any need to rule on that of 13 November 2009, and ordered the police zone to pay costs of 350 euros.
Why does this matter?
This judgment displays two mechanisms that still govern procurement litigation today. First, the replacement manoeuvre: an authority that redoes its decision after an action is filed — here with a report that quietly reversed the earlier non-selection — does not thereby escape the court. The new decision with the same object can be challenged in the pending proceedings, and the old one counts as implicitly withdrawn. Second, and above all, the sanction for a deficient administrative dossier. The Council of State judges on documents; an authority that fails to file the essential pieces — such as the winning tender — or files them too late undermines the very review of legality. Article 21, third paragraph then reverses the burden: the applicant's facts are deemed proven. Late repair does not help, since documents surfacing after the final brief are excluded to preserve the adversarial character of the debate. The result is striking: an award falls not because the comparison of tenders was substantively wrong, but because it had become unverifiable. For a litigant that is a lesson in procedural discipline; for practice, an illustration that file management is not administrative housekeeping but the foundation of the defence.
The lesson
For contracting authorities: treat the administrative dossier as the backbone of your defence. File it completely and on time, including the successful tenderer's offer, and respond immediately to requests from the auditor's office — whatever arrives after your final brief no longer exists for the Council. Nor should you think a 'repaired' decision taken mid-procedure will save you: it is drawn into the proceedings and the dossier's defects remain. For tenderers: systematically request the full dossier and document what is missing. A patchy or late dossier from the authority is a powerful weapon: under article 21, third paragraph your factual assertions are then taken as true unless manifestly inaccurate. And challenge a replacement decision immediately in your reply brief — that way your action never loses its object.
Ask yourself
Is your administrative dossier complete — including the successful tenderer's offer — and can you file it at once if the auditor's office asks? Do you realise that documents produced after your final brief are excluded from the debate? Do you know that the opposing party's facts are deemed proven when your dossier remains patchy (art. 21, third paragraph)? And as a tenderer: do you monitor the proceedings so as to challenge any replacement decision in time, and do you check whether the dossier filed is complete?
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 →