If you don't check your e-Notification dashboard, the contracting authority can reject your bid — 'I didn't get the email' is no defence
The Council of State dismisses the extreme-urgency challenge by Tectum Constructors against the award to SCTD for the roofs of the Mons Music Academy: when the procurement is run via e-Notification, a bidder who does not consult its restricted file on that official platform cannot later claim it missed a price-justification request — the authority is not required to prove that the bidder actually received or opened the invitation.
What happened?
On 12 September 2022 the city of Mons published a works contract for renewing the roofs of its Music Academy. Procedure: direct negotiated procedure with prior publication, estimated value 589,743 EUR excl. VAT, single award criterion — price. All communication runs through the e-Tendering and e-Notification platforms of the federal e-Procurement services. By the deadline (3 October 2022) four bids come in: Tectum Constructors, SCTD, Jacobs et Fils and Tracedo Belgium. Tectum bids the lowest. During price examination Mons identifies, for each bidder, items that look abnormally low or high, and on 17 October 2022 sends each bidder a 'request for justifications of abnormal prices' — placed in a 'restricted file' on the e-Notification platform, with a 12-calendar-day response window (deadline 31 October). The invitation explains step by step how to open the file: save the letter, log in to my.publicprocurement.be, click the e-Notification link, and unlock the restricted file with the password in the letter. Screenshots produced by the city show that every bidder — except Tectum — consulted the platform within three days (17 or 20 October). Tectum only logs in on 30 January 2023, three months after the award decision. On 8 December 2022 the council awards to SCTD for 762,290.73 EUR excl. VAT and excludes Tectum's bid on the ground that it 'did not respond to the request for justifications'. The decision is only sent by registered post on 23 January 2023. On 3 February 2023 Tectum emails the city: it claims never to have received a price-justification request, neither by email nor by registered post. Mons replies the same day: the invitation was sent, in line with the regulations, via e-tendering/e-notification — not by email or by registered mail. Tectum files an extreme-urgency challenge on 8 February 2023, raising three branches: violation of the principle of equal treatment, violation of Article 84 of the 2016 Act and Articles 33-35-36 of the 2017 Royal Decree (improper price examination), and violation of Article 8 of the Act of 17 June 2013 (late notification of rejection). The Council rejects every branch. First two branches: e-Notification is a reliable electronic communication channel within the meaning of Article 14 of the 2016 Act. Article 36 § 2 of the 2017 Royal Decree merely requires the authority to 'invite' the bidder to provide justifications — not to prove that the invitation was effectively received or opened. Proof of dispatch is enough. The platform's own warning — 'sending via e-Procurement does not guarantee that the company receives the letter; ask for a receipt or use another channel' — is a recommendation, not a legal duty. Under the previous regulation, even a registered letter without acknowledgement of receipt was sufficient. Moreover, Tectum knew perfectly well which channel Mons had used (the city confirmed it in the 3 February email), and on logging in on 30 January 2023 Tectum could have checked the email addresses stored on the platform for its company — at least one of those addresses matched the address Tectum itself had given in its bid. Third branch: the deadline in Article 8 of the 2013 Act for notifying the rejection of a bid is not bound by a statutory time limit; any breach is a post-decision formality and does not affect the lawfulness of the contested decision. Mons asked for compensation for a frivolous and vexatious challenge — 38,114.53 EUR, the 5% statutory cap on the award value. The Council refuses: although Tectum made untruthful statements in its application (it claimed 'not to know which channel' Mons used, although the 3 February email had made that clear), it is not established that the alleged non-receipt itself was raised in bad faith. The concept of 'manifestly abusive recourse' must be read restrictively. Tectum does pay the ordinary procedure indemnity of 770 EUR to Mons, plus the roll fees.
Why does this matter?
For every bidder participating through e-Procurement this ruling is a wake-up call. e-Notification is not a regular inbox, it is the official communication channel for electronically run procurements above the threshold. The contracting authority does not have to check whether your email ended up in spam, whether your address is correct on your own profile, or whether you actually clicked the link. A bidder who does not pick up the invitation on the platform cannot later hide behind 'I didn't get it'. Concretely: a price-justification request with a 12-calendar-day deadline can fall between your bid submission and the award decision, and if in that period you don't visit the platform, you are out. For authorities the message is reassuringly the reverse: as long as you use a reliable electronic channel (e-Notification meets Article 14 of the 2016 Act), proof of dispatch is enough. You are not required to ask for a delivery receipt, even though the platform itself recommends doing so for matters where you might need proof of receipt. For frivolous-and-vexatious claims the bar is high: even an application with untruths slips through as long as the core claim is not manifestly in bad faith. An authority counting on 38,000 EUR in such compensation must not treat it as a sure thing.
The lesson
If you bid on a contract running through e-Procurement, set a strict rhythm from the moment you submit your bid to check e-Notification — at least twice a week, and certainly during the whole evaluation period. Put it on a shared bid-team calendar and back it up with a second team member checking the same inbox. Also proactively verify which email addresses are registered on your profile; one outdated or wrong address can cost you a price-justification request. And do not rely on a contracting authority chasing you by email or registered post — that is not its obligation.
Ask yourself
For every live bid: who in your team checks daily whether a 'restricted file' has been created on e-Notification? Which two email addresses are listed in your e-Procurement profile — are they still valid and do they go to mailboxes that are actually read? Do you have a protocol for what happens when a team member is absent during the evaluation period? If you can't immediately answer one of these three questions, you are structurally exposed to the scenario of this ruling.
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 →