A 'final' email from a Category Buyer can amount to a challengeable exclusion decision — even when the author was not authorised to take it
The Council of State suspends the exclusion of AGC Glass from the SNCB tender for M6 train window frames because the email by which a Category Buyer 'definitively' rejected the bid does constitute a challengeable administrative decision — but was taken by someone who, as SNCB itself admits, lacked the authority, leading the Council to suspend on an ex officio ground.
What happened?
In March 2019 the SNCB published in the Belgian and EU Official Journals a qualification system for locomotives, rolling stock and parts — including complete window frames for rolling stock. AGC Glass Europe qualified. On 18 February 2020 the SNCB invited several qualified firms, including AGC, to submit a bid for 'Châssis de baie complets pour matériel roulant M6 — révision 3' (framework agreement). The initial deadline of 31 March was extended to 28 April 2020, 11h00, due to Covid-19. On 28 April AGC ran into technical issues on the e-tendering platform: although its ONSS attestation had been uploaded the previous evening, on the day itself it could not upload the remaining bid documents. At 13h46 a Key Account Manager at AGC sent an email to SNCB with the bid and annexes attached, apologising and hoping for SNCB's 'indulgence' given the announced opening time. On 5 May 2020 a Category Buyer of SNCB — L. V. E., from the Finance Department — replied by email: 'We have consulted our legal service and as I feared, we cannot accept your bid because it was not sent on time on the platform. We must respect the principle of equality; it would be unacceptable to still accept your bid after the closing date vis-à-vis firms that respected the deadline. I understand your concern, but I must respect the law.' AGC sought urgent suspension against that email. SNCB defended on two grounds: the email is not a challengeable administrative decision (merely a 'preparatory' communication), and even if it were, AGC had no interest because its bid contained other irregularities (prohibited price-revision formula, incomplete DUME). The Council rejects both objections. The email expressly states that 'after consulting the legal service' the bid cannot be accepted, carries the official SNCB logo and the signature of an agent of the Finance Department (the same who had signed the invitations), and contains no reservation — no reference to a future formal decision by a competent body. The form and wording indicate a definitive exclusion decision. Lack of competence may lead to annulment or suspension but does not affect the nature of the act. As to interest: AGC challenges that very exclusion in its second ground; the other irregularities invoked by SNCB have not been formally established in an award decision. The Council then turns to an ex officio ground raised by the Auditor: SNCB itself admits in its supplementary note that L. V. E. 'has no competence to exclude a tenderer from the procedure'. For this type of contract (estimated above €7.5 million) only the Board of Directors is authorised under SNCB's internal delegations to decide on exclusion. The parties were given the opportunity to debate this — SNCB declared it had no observations. The ex officio ground is declared serious. Suspension with immediate execution.
Why does this matter?
This judgment confirms two things often confusing for bidders in practice. One: an email from a buyer or purchaser definitively rejecting your bid is a challengeable decision — you don't need to wait for a 'real' letter or a formal award to a competitor. Two: you can rely on the content of that email even if the authority later says 'that person had no authority'. Lack of competence is not an escape route for the authority; on the contrary, it is a suspension ground for you. For contracting authorities the lesson is the reverse: spell out in every communication to rejected bidders that this is a preparatory analysis, not a definitive decision — otherwise the UDN clock starts running from that email, and the author is legally bound to an act they should not have taken.
The lesson
If you receive an email from a buyer, purchaser, contract manager or similar role definitively rejecting your bid, treat that email as a decision and start the UDN deadline. Don't wait for a formal letter from the competent body. Read the email critically on two points: (1) does it contain a reservation ('preliminary advice', 'pending Board ratification')? (2) Is the author, given the contract value and delegation rules, authorised to exclude? If either answer is 'no', you have at least one strong argument: the email is either definitive and challengeable (no reservation), or flawed by lack of authorial competence.
Ask yourself
On a rejection by email: note the exact date and time (UDN deadline = 15 days from notification). Read the email literally: does it use present or future tense ('we cannot accept your bid' versus 'it would be unacceptable to accept')? Does it refer to 'legal service advice' or to a 'decision of the competent body'? Check the contracting authority's website or delegation rules: above which amount can only the Board or another senior body exclude? If the author clearly does not hold a position consistent with that level — flag it in your application.
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 →