Your bid was declared irregular? Then you can no longer challenge the award to the competitor — unless you also challenge your own rejection
Écoterres had its bid for a Walloon framework agreement for soil processing rejected as substantially irregular; the Council of State dismisses its extreme-urgency action for lack of interest in the two pleas — an important reminder of the line between 'interest in the action' and 'interest in the plea'.
What happened?
SPAQUE — a public-law company under the Walloon waste decree, entrusted with site remediation missions — launched on 22 February 2022 a framework agreement for 'the loading, transport and processing of excavated soil' over four years. The estimated value was 3 million euros per year, 12 million euros over the full term. Distinctive feature: SPAQUE acted as a central purchasing body in the sense of Article 2, 6° a) of the 2016 procurement act. Beneficiaries included almost every Walloon public entity — the Walloon Region, provinces, cities and municipalities, CPASs, intercommunals, social housing companies, autonomous ports, universities and educational institutions, IFAPME centres, Walloon administrations of the French Community, and even the Buildings Agency and federal services for their Walloon sites. On 29 April 2022 the framework was awarded — to four of the five bidders, but not to Écoterres. Écoterres's bid had been declared irregular for a substantial defect: the tender required, on pain of nullity, that bidders submit separate acceptance criteria for the three classes of technical landfills (Class 1, 2 and 3), which Écoterres had not done. On 18 May 2022 Écoterres filed an extreme-urgency challenge with the Council of State, represented by attorney Gauthier Ervyn, against two decisions: the launch decision of 22 February 2022 and the award decision of 29 April 2022. It raised two original pleas: (1) the tender does not state a maximum quantity or value of the framework — breach of the transparency requirement confirmed by the Court of Justice in Antitrust-Coopservice (C-216/17) and Simonsen & Weel (C-23/20); (2) the sole award criterion (price) does not allow an objective comparison because the acceptance criteria of the processing centres differ per bidder. At the hearing Écoterres also raised a new plea: the launch decision would have been taken by an incompetent author (the management committee rather than the board of directors). The Council of State (President Florence Piret, auditor Constantin Nikis) rejects on all counts. First ratione temporis: the action against the 22 February launch decision was out of time — Écoterres could, since the tender notice of 23 and 28 February 2022, assume the decision existed and should have requested it then; the 15-day period starts from reasonable knowledge, not from effective knowledge. Then on the merits: the public-order plea of incompetence is admissible (it may be raised at the hearing, within procedural loyalty) but prima facie unfounded — Article 39undecies of the waste decree and SPAQUE's statutes allow full delegation to the management committee for the launch, award and notification of contracts (except above certain European thresholds). The 'day-to-day management' definition in Article 7.121 CAC cannot restrict a specific decretal delegation. Finally the two original pleas against the award: Écoterres has interest in the action (it did bid), but no interest in these specific pleas. The requirement to state a maximum quantity/value and the criticism of the price criterion are both unrelated to the reason for its own rejection (the missing acceptance criteria). A bidder whose offer has been declared irregular can found an annulment or suspension action only on pleas that (a) contest that irregularity finding itself, or (b) show that the chosen bidder is also irregular or was unlawfully selected. The prospect of 'redoing everything' if the action succeeds is not enough. The additional capacity of 'economic operator' (non-bidder interest) does not allow the action to be founded on the 2013 act. Also important: the first plea is not accepted as 'of public order' — the duty to state a maximum for a framework is not a rule of Belgian public order. The Council dismisses with 922 euros in costs against Écoterres.
Why does this matter?
This ruling lines up three rules that determine every fight over an irregular bid. One: once your bid has been declared substantially irregular, you lose, in principle, your interest in attacking the award to another bidder — unless you also raise a plea that (a) makes your own rejection unlawful, or (b) makes the winner's bid irregular. This is the distinction between interest in the action and interest in the plea. Two: public-order pleas are no magic wand — you must still show a personal interest in the action, save in very exceptional cases (actio popularis is excluded). And three: the 15-day extreme-urgency deadline runs from reasonable awareness of the decision, not from effective and complete awareness. Since publication of a notice, you may be deemed to know of the underlying launch decision. For bid managers on large frameworks or central purchasing this ruling is also a practical checklist: if your bid is rejected for a substantial defect, run your strategy on two tracks — first show the rejection was unlawful, then broaden the critique. One track alone is not enough.
The lesson
If your bid is rejected for substantial irregularity and you are considering extreme urgency, write your pleas in this order: (1) a plea against the rejection itself — why was my bid actually regular or why is the rejection poorly reasoned; (2) a plea against the winning bidder — is that bid not also irregular; (3) only then broaden. Without at least track (1) or (2) every later plea lacks interest and the action will be dismissed regardless of the legal quality of your arguments.
Ask yourself
Your bid has been declared substantially irregular and you plan an extreme-urgency challenge: do you have at least one plea that directly contests your own rejection or shows an irregularity in the winning bid? If not: no interest, no chances.
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 →