You can't challenge specifications you only downloaded on the bid opening day
The Council of State declares INSTELE's appeal inadmissible: contradictions between the contract notice and the specifications (3 vs 24 months duration, 6 vs 7 December as opening date) do not turn the specifications into a challengeable 'decision' — INSTELE knew of the tender from 22 November but only downloaded the specifications on 6 December and asked no questions.
What happened?
The Spa-Francorchamps Circuit launched a tender for a high-density Wi-Fi infrastructure and mobile app, with a 146-page specifications document. The contract notice was sent on 20 November and published on 22 November under the urgent procedure of article 118, §3 of the 2016 Procurement Act, with bid opening set for 7 December. But the notice and the specifications contradicted each other on multiple points: the notice mentioned 3 months non-renewable duration, the specifications 24 months renewable up to three times. The notice indicated 7 December as opening date, the specifications 6 December. The specifications still referred to the old 2011 Royal Decree instead of the 2017 one. INSTELE, active in the sector, learned of the tender in December but only downloaded the specifications on 6 December — the opening date according to the specifications. By then it was too late to bid. INSTELE asked no questions during the official Q&A phase, but on 7 December had its lawyer denounce the irregularities and demand withdrawal of the procedure. The Circuit refused. INSTELE went to the Council of State on extreme urgency, asking for suspension of the decision adopting the specifications and notice, and of the award procedure as a whole. The Council ruled strictly. First on jurisdiction: an award procedure as a whole is not a challengeable decision — the Council can only review concrete decisions. The contract notice itself is not an autonomous decision but a mere execution of prior decisions, so not challengeable. Specifications are in principle a preparatory act, only challengeable if they have definitive consequences for the applicant — for instance if they fully prevent participation. INSTELE failed to demonstrate this. No EU publication? There was one (23 November). Missing legal form or company number? Not relevant to participation. Contradictory opening dates? INSTELE could have asked during the Q&A phase but didn't. Contradictory durations? Possibly off-putting, but nothing in the specifications concretely prevented bidding. The Council emphasised that INSTELE — aware of the tender from 22 November and of the mandatory site visit on 24 November — only downloaded the specifications on 6 December. The appeal was declared inadmissible, INSTELE was ordered to pay 700 euros.
Why does this matter?
This judgment teaches anyone considering challenging specifications a hard lesson: specifications are in principle a preparatory act, not an autonomous decision. To challenge them, you must show they actually exclude you from participation — not just that they contain procedural irregularities. For bidders: download specifications as soon as the notice appears, use the Q&A phase to clarify contradictions, and don't wait until the opening day. For contracting authorities: contradictions between notice and specifications increase procedural risk, especially under urgent procedures with shortened deadlines.
The lesson
If you spot contradictions between a notice and specifications, first use the official Q&A channel to seek clarification — before going to the Council of State. Specifications are in principle a preparatory act: only when they truly exclude you from participation can you challenge them directly. Waiting until the opening day to complain doesn't work — it is your own responsibility to download in time, ask questions and react within the legal deadlines.
Ask yourself
If you want to challenge specifications under extreme urgency: can you concretely demonstrate that a specific provision prevented you from bidding? Did you ask questions during the Q&A phase? Did you download the specifications in time? If not, your appeal will likely be declared inadmissible, with costs.
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 →