Asking for a specification change does not extend the 15-day deadline: challenge the selection criteria within two weeks of publication
The Council of State declares bailiff Alain Bordet's extreme-urgency action against the selection criteria and GDPR clause in tender specification 3380-CSC Recouvrements créances 2024-2031 of SWDE and CILE inadmissible as out of time: the 15-day deadline of Article 23, § 3 of the 17 June 2013 Act also applies to specification conditions and cannot be extended by first sending a correction letter.
What happened?
In 2016 the Walloon Water Company (SWDE) had awarded a debt recovery outsourcing contract to VENTURIS — a company with nearly all its activities in Tunisia. This caused political and media controversy, particularly regarding personal data protection of Walloon water customers. For the follow-up contract (2024-2031), SWDE — now acting as joint contracting authority with CILE (Compagnie Intercommunale Liégeoise des Eaux) — adopted tender specification 3380-CSC Recouvrements créances 2024-2031 on 10 March 2023. It was published with the contract notice on 13 March 2023 in the Bulletin des Adjudications. Candidatures were due by 14 April 2023, 11:59. SRL Alain Bordet, Huissier de Justice — a bailiff who handled CILE's collections at the time — saw two major problems. First, the selection criteria: 1,000,000 EUR annual turnover in debt recovery for 2019-2021, and three attestations of successful annual management of at least 70,000 cases for a single client. The latter — 70,000 cases on one financial year for one client, no cumulation allowed — artificially excluded most Walloon bailiffs. Second, Annex 3 Article 6 permitted transfer of personal data to countries outside the EEA (the old VENTURIS issue). On 28 March 2023 — 15 days after publication — Bordet sent a letter requesting revision. Only on 7 April 2023 did SWDE respond through its lawyer: the procedure continues on the basis of the published documents. Bordet filed the extreme-urgency action the same day. The hearing was on 26 April 2023. President f.f. David De Roy cut short: Article 23 § 3 of the 17 June 2013 Act sets a 15-day deadline for suspension actions under Article 15 of the same Act. The Council firmly rejects the theory that this deadline applies only to award decisions — it applies to all decisions of contracting authorities open to action, including approval of specifications. And it runs from knowledge of the act, not from knowledge of any refusal to amend. Bordet had seen the contract notice on 13 March and filed only on 7 April — nearly 25 days later: out of time. In the alternative, Bordet argued that urgency could be shown outside the 15-day presumption (Article 15 permits this). The Council: even then there was no diligence — you waited until 28 March just to send a protest letter, at the very expiry of the legal deadline. The action is inadmissible. On confidentiality (documents 1-10, 12, 13, 17-21), the Council rules without needing to decide the deeper Article 13 questions of the 17 June 2016 Act: since the action is inadmissible anyway, access to the documents would not serve effective recourse. Confidentiality is maintained. Bordet bears the costs: 200 EUR filing fee, 24 EUR contribution, and 770 EUR procedural indemnity for SWDE and CILE together.
Why does this matter?
This ruling breaks a widespread tactic: 'I see a problem in the specifications, I first send a polite letter asking for an amendment, and if it is refused my extreme-urgency deadline starts.' Wrong. The Council states explicitly: the deadline runs from publication or knowledge of the specifications themselves, not from the refusal to amend. That is crucial for anyone who sees selection criteria, a GDPR clause, a lot-division clause, a technical specification or any other tender condition as unlawful. The Council also confirms that Article 23 § 3 does not apply only to award decisions — there is no distinction between 'preparatory' and 'final' decisions of contracting authorities once they are open to action under Article 15. For bidders this means the clock starts when the specification is published. If you want to challenge CSC conditions, you must be in Brussels with a request within 15 days — behind-the-scenes conversations to ask for amendment are permitted but do not suspend the clock. For authorities it means that a carefully motivated specification that has passed the 13-15 day publication mark is relatively safe from suspension action — although the annulment procedure (60 days) remains open.
The lesson
If you consider tender conditions unlawful (selection criteria too strict, GDPR clause problematic, lot division manipulated, technical specifications restrictive): count 15 calendar days from publication in the Bulletin des Adjudications (or TED). Not 15 days from any negative response to a correction letter — that extends nothing. If you want to engage in dialogue with the contracting authority first, do it in parallel with preparing your request, not in series. For your request, use all the classical grounds: infringement of competition principles, Articles 66-67 of the 17 June 2016 Act, the principles of equality and transparency, GDPR, etc. Explicitly opt for the urgency presumption of Article 15 and file in time; the subsidiary route ('urgency outside the presumption') requires exceptional diligence and rarely succeeds.
Ask yourself
Have you known about a specification clause you believe unlawful for more than 15 calendar days? Then it is too late for an extreme-urgency suspension — at most you can still file an annulment action within 60 days. Still within the window? Immediately check: (a) whether the authority agrees to an amendment within days, or (b) whether you file your request right now and build the dialogue in parallel. The mistake Alain Bordet made was sequential thinking in a deadline-sensitive procedure.
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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 →