Waiting for an 'implicit modification decision' until you read in the press that the winner brings a new partner — that's 60 days too late
Inter Real Estate Trusty waited two and a half months after being notified that its bid for the sale of the Muntcentrum had been rejected, then read in the newspaper that the winning consortium WCCS had brought Immobel on board, and tried to file an extreme-urgency challenge against an 'implicit modification decision' — the Council dismisses both the original decisions as out of time and the implicit modification as non-existent.
What happened?
On 5 February 2018, the City of Brussels and bpost concluded a cooperation agreement to sell their respective shares in the Muntcentrum (the building complex on the Brouckèreplein). The transaction was a sui generis 'transparent market consultation' — not a classic public procurement — covering three components: sale of the respective spaces, a lease-back/lease-swap for bpost (a new long-term lease in either a renovated Muntcentrum or another office building), and temporary leases until bpost and the City respectively move into new offices and the new Brucity administrative centre. As bpost held the larger share, bpost led the process. The market consultation was announced on 7 March 2018 via internet, an international real estate fair and specialised press. On 7 May 2018, seven candidates applied, including Inter Real Estate Trusty (IRT) and the WCCS consortium (Whitewood Capital, CIIAMB, Cordeel, Strabag). On 28 September 2018 a short list of two was drawn up: IRT and WCCS, both filing a BAFO on 7 December 2018. On 16 January 2019, bpost chose the WCCS bid (around 80 million EUR for the shares, long-term lease in the renovated Brouckère tower — future 'Multi Tower' — and temporary leases); the City of Brussels followed on 17 January. By email of 18 January 2019, IRT was informed its bid had not been chosen. IRT phoned Deloitte Real Estate (bpost's adviser) for additional information, which it reportedly received. On 23 January 2019 the private agreements were signed. Only on 5 April 2019 — more than two months and two weeks after notification — did IRT write to the respondents, prompted by a press report on a new collaboration between Whitewood and Immobel. The respondents replied on 10 April that they too had only learned of this collaboration via the press and that it was unrelated to the market consultation. On 10 April 2019, IRT launched the extreme-urgency procedure, targeting two decisions: (1) an 'implicit decision of unknown date' to modify the original sale by allowing WCCS to partner with Immobel, and (2) the original award decisions. The Council does not engage in the dispute over whether this was a public procurement — a question that determines whether the 17 June 2013 Act applies (no urgency proof needed). In both procedural variants, the Council says, article 17 §1 of the coordinated laws applies: a suspension is only possible if the contested act is still 'capable of annulment'. As to the original decisions: IRT was notified on 18 January, phoned the same day, and considered itself sufficiently informed — then did nothing for over sixty days. The annulment window had therefore expired; the original decisions can no longer be annulled, hence no longer suspended. As to the 'implicit modification decision': 'Implicit decisions as the object of annulment or suspension applications are almost always problematic'. The Council must check whether such a decision exists, and here the respondents expressly deny its existence: they did not modify the transaction, they too only heard about the Whitewood-Immobel collaboration via the press, and that collaboration is unrelated to the transparent procedure. The Council concludes that no implicit modification appears to have taken place — administrative acts whose existence is unproven cannot be the object of an appeal. Application dismissed in full; costs against IRT (200 EUR roll fee, 20 EUR contribution, 700 EUR procedural indemnity to the respondents, each half).
Why does this matter?
Two recurring traps in one case. One: the sixty-day deadline. Many bidders, after a 'bare' rejection notice ('your bid was not selected'), first call for more info, hope for clarity, and then wait some weeks before deciding on action. That strategy costs you your rights — the Council looks at the moment you 'considered yourself sufficiently informed', and a phone confirmation of the essence suffices. Two: the fiction of the 'implicit modification decision'. When you hear afterwards that the winner is suddenly working with a new partner, you often think: 'there must be a new decision somewhere'. But the Council demands concrete proof that such a decision exists — a mere press mention of a later commercial collaboration is never enough, and the authority may deny its existence. To respond to changed performance conditions: build your case around a verifiable decision, not around a suspicion.
The lesson
If you receive a rejection email after a market consultation or public procurement, start the 60-day clock immediately. A phone call for 'extra info' does not extend the deadline — on the contrary, it proves you considered yourself sufficiently informed. Make two decisions within the first two weeks: (1) am I going to appeal, and (2) what is the latest date by which I must formally file. And if you later hear that the winner is working with a new partner, do not automatically dismiss it as a 'disguised modification'. First ask the authority in writing whether a new decision has been taken. If you get a denial, you are stuck — an 'implicit decision' that both authority and winner contest will not pass the Council.
Ask yourself
When was I formally notified of my rejection? Did I then ask for clarification by phone or email — and if so, when? How many days am I from that date today? If it's more than 50 and I am still hesitating: have I called my lawyer today? And if I rely on an 'implicit' modification: do I have one concrete written piece of evidence confirming the existence of that new decision — or am I building my case on a press article?
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 →