You challenge your non-selection — but let the award to a competitor pass. What then?
A non-selected candidate for the truck toll system tender litigates against its non-selection but lets the award to Sky-ways stand unchallenged — the Council applies the Amec Spie doctrine and declares the action no longer admissible.
What happened?
In May 2013 the Flemish Department of Finance and Budget, acting as lead agent for the Flemish Region, the Walloon Region, the Brussels-Capital Region and SOFICO, publishes the call for a vast DBFMO contract: designing, building, financing, maintaining and operating an 'ecologically modulated smart' truck toll system. Procedure: negotiated procedure with publication, limited to five participants. Seven candidates apply, among them the Dutch company Acrostichon Ventures. On 16 July 2013 the selection committee picks five consortia: Xerox-Meridiam-CFE-Vinci, T-Systems-Belgacom-Strabag ('Sky-ways'), Traxia, ViApia and BelGoVerde. Acrostichon comes sixth, Kapsch seventh. Acrostichon challenges its non-selection on 17 September 2013. On 18 July 2014 the contracting authority awards the contract to Sky-ways; the award is published in the OJEU Supplement on 16 August 2014. Acrostichon does not challenge that award. In 2015 the rapporteur-auditor raises ex officio that Acrostichon has lost its interest. The Council recalls the Amec Spie doctrine (Council of State-General Assembly no. 152.174 of 2 December 2005): a non-selected candidate who challenges the selection decision but not the subsequent award to a competitor loses its interest in challenging that selection. Acrostichon's argument — that as a candidate (not a tenderer) it had only to be notified of the selection decision, not of the award — is dismissed. The Council draws the distinction: the authority's notification duty is separate from the applicant's duty to demonstrate a continuing interest. Effective knowledge suffices to start the appeal period against the award. Acrostichon was made aware via OJEU publication (16 August 2014), the auditor's report (30 June 2015) and the authority's final brief (15 September 2015); its time limit expired on 29 August 2015, and it did not file an annulment action. The Council also rejects the appeal to the EU General Court's Proges/Commission ruling and to a possible damages claim. The action is no longer admissible and is rejected.
Why does this matter?
This is the basic lesson of the Amec Spie doctrine in its purest form. Many bid managers and their counsel believe a challenge against non-selection suffices to safeguard their rights — especially when the authority does not expressly notify them of the later award. This judgment bluntly makes clear that line of thinking costs them the case. Whoever should have been selected but fails to challenge the subsequent award loses its action against the selection — even if that case has been running for months. The trick: monitor in two dimensions. If you challenge a non-selection, automatically track the publication of the award (OJEU, websites) and challenge that award within 60 days of effective knowledge.
The lesson
If you are litigating a non-selection as an unsuccessful candidate, actively monitor the publication of the award decision. Services like TenderWolf follow the Bulletin of Procurement, TED and e-Procurement automatically — use a 'follow this authority' alert. The moment the award is published, file an annulment action against that decision too within 60 days (effective knowledge as starting point), even if the authority did not directly notify you. Otherwise you lose not only the second action but also the first. For contracting authorities: this doctrine offers procedural protection — without having to formally notify non-selected candidates of the award, you build up a time bar that extinguishes their pending action against the selection.
Ask yourself
Do you have a pending action against a non-selection or exclusion? Have you also challenged the award decision in that same procedure — or, after checking OJEU/Bulletin/e-Procurement today, do you still have time to do so?
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 →