Proximus uploads its application to the wrong e-Tendering file — and the Council of State calls its rejection excessive formalism
The Council of State suspended, under extreme urgency, Lantis’s selection decision for the ICT-infrastructure framework agreement: rejecting outright, without any assessment, a timely application to participate that had landed in the file of a sister contract through the mix-up of two nearly identical file numbers goes beyond what the objectives of electronic submission require and prima facie breaches the principle of proportionality.
What happened?
Lantis — the public company building Antwerp’s Oosterweel link — published two framework agreements simultaneously on 18 July 2022: ‘ICT infrastructure and digital workplace services’ (BAM 2022-191) and ‘Software development and maintenance services’ (BAM 2022-192), both under a competitive procedure with negotiation and both with the same submission deadline of 31 August 2022, 12.30 p.m. Proximus wanted the ICT contract and filed on time — but uploaded its application to participate into the e-Tendering file of the software contract: the file numbers differed by barely a digit (BAM-PPP1HI-191/2031 versus BAM-PPP1HI-192/2032). The consequences followed predictably. The opening report for the ICT contract (seven candidates) did not mention Proximus; the review report for the software contract excluded it for having filed ‘in the wrong file’. On 4 October 2022 the management committee selected five candidates for the ICT contract — implicitly but certainly excluding Proximus. When Proximus flagged the ‘minor clerical error’ on 19 October and asked for its application to be considered, Lantis replied on 24 October that an application cannot be transferred between files, that the opening report was final, and that adding a candidate later would create litigation risk vis-à-vis the selected candidates. The Council of State saw it differently. The application was timely: only the letter of 24 October made clear to Proximus that its application would not be considered for the ICT contract. On the merits, the Council started from article 4 of the Act of 17 June 2016 and the European case law on proportionality: where several suitable measures are available, the least onerous must be chosen. Electronic submission serves equality among candidates and the prevention of manipulation — and those objectives were achieved here: the application was submitted on time, nobody disputed it, and there was no question of manipulation. Article 34 § 2 of the placement decree (correction of arithmetical errors in tenders) was irrelevant, since this was not a flawed tender but a wrongly uploaded application. The federal e-Tendering manual moreover showed that an ‘additional’ opening report could be generated, allowing a transparent transfer. The concrete circumstances weighed heavily: same authority, near-identical file numbers, identical deadline, and an application whose front page clearly referred to the ICT contract — Lantis had spotted the mistake immediately. By simply refusing to consider the application, Lantis prima facie took a measure going further than necessary; the plea was serious and the selection decision of 4 October 2022 was suspended, in line with the auditor’s opinion.
Why does this matter?
This judgment is the Belgian reference point for what an authority must do when an application or tender lands on the wrong virtual desk. The Council accepts Lantis’s premise — the bidder must file correctly, and the authority need not repair its mistakes — but sets an equally principled limit against it: excessive formalism is not risk management but a proportionality problem. The test is functional, not formal: have the objectives of electronic submission — equality, no manipulation, a fixed time of receipt — been achieved? If so, rejecting a timely application for the sole reason that it sits in the wrong folder goes further than necessary. Striking is how concretely the Council weighs the circumstances: the near-identical file numbers, the identical deadline, the fact that the authority itself had spotted the error at once, and even the e-Tendering manual showing that an additional opening report could put things right transparently. The litigation-risk argument — ‘the runner-up will protest’ — is put in perspective: equality is better served by considering all timely applications. The judgment also teaches a useful lesson on time limits: notification of non-selection for one contract does not start the clock for the other contract as long as the authority has not formally communicated that second decision. In an era where virtually all submissions run through e-Procurement, this is a judgment with a long shelf life.
The lesson
For bidders: when filing electronically, check to the point of tedium that you are in the right file, especially when the same authority publishes several contracts with near-identical references simultaneously — Proximus’s error was rescued by the court, but at the cost of an extreme-urgency procedure. If things do go wrong, react immediately and in writing, confirm which contract your submission was intended for, and remember that the time limit only starts running once the authority formally tells you your application will not count for that contract. For authorities: when faced with a wrongly uploaded but timely submission, weigh proportionality before reaching for the formal axe. Ask whether equality or the integrity of the process is genuinely at risk, and use the tools the platform offers — such as an additional opening report — to document the correction transparently. Waving away candidates over a purely formal slip while the objectives of the rule are met invites a suspension and a redo of the procedure.
Ask yourself
Do you verify the file number, contract name and contracting authority before every e-Tendering upload — and again in the confirmation of receipt? Do you know that a timely submission in the wrong file is not automatically fatal, but that you must flag the error at once? As an authority, can you explain which objective — equality, prevention of manipulation — would be compromised if you considered the wrongly uploaded application after all? And are you aware of the option to generate an additional opening report to make such a correction transparent?
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 →