When the contracting authority 'loses' your offer, your stamped envelope saves you
The Berchem-Sainte-Agathe public welfare centre awarded a medication contract to Pharma Force on the ground that 'two offers were received' — but Multipharma had filed its offer on time, as proven by a stamped envelope with date and time, and the Council of State annuls the award.
What happened?
The Berchem-Sainte-Agathe public welfare centre (CPAS) launched a procurement for 'the supply of medicines and pharmaceutical specialities by individual medication preparation (PMI)' under reference SCAD 974-30/03/2022. The deadline for offers was 22 April 2022. On 13 July 2022, the welfare council awarded the contract to Pharma Force at a 35 % rebate on the public price. Multipharma learned of an analysis report stating that 'two offers had been received' — Pharma Force and Lloydspharma Group. Its own offer was not mentioned. Multipharma produced before the Council of State a photocopy of the envelope with which it had delivered its offer in person on 22 April 2022 at 13:40 in Berchem-Sainte-Agathe. The photocopy showed: Multipharma's identity, the specifications reference, the CPAS address and references, AND the CPAS stamp with the mention 'received on 22 April 2022 at 13:40'. The specifications allowed delivery 'par porteur' (by hand), required the envelope to be 'definitively sealed' — which made it impossible to reconstruct its contents afterwards — and required the specifications references to appear on the envelope. All these elements were correct. The CPAS contested neither the value nor the relevance of the document. By judgment no. 254,932 of 28 October 2022, the Council of State had already suspended the award: everything indicated that a 'definitively sealed' envelope containing the offer had been delivered on time, and the CPAS gave no explanation of what had happened to that envelope. The award decision rested on the factually incorrect ground that 'only two offers were submitted' — an immediate breach of the equality principle vis-à-vis Multipharma. The auditor proposed annulment via the procédure abrégée (art. 30, § 3 of the consolidated Council of State laws and art. 14quinquies of the general procedure regulations). The CPAS did not request continuation of the procedure and did not turn up to be heard. On 1 December 2023, the Council of State agreed with the auditor's reasoning and annulled the 13 July 2022 award decision.
Why does this matter?
For bidders: never, ever, ever hand in an offer without a stamped acknowledgement on your own copy of the envelope or document. Here, that photocopy of the envelope was the only conclusive evidence — no email, no statement, just a photocopy bearing the contracting authority's stamp. For contracting authorities: this exposes your weak link. A lost offer is not a clerical hiccup but a ground for annulment. The legal requirement of a 'definitively sealed' envelope means the authority cannot reconstruct the contents afterwards — so the registration of the delivery itself, from the moment it is handed over, must be done with surgical precision, regardless of the contents.
The lesson
If you deliver an offer in person, demand a stamped, dated acknowledgement — photocopy or photograph the envelope with stamp before you let it go. Two reasons: first, it is your only convincing proof of timely submission; second, if the contracting authority 'loses' your offer, it will justify annulment of the award. For contracting authorities: maintain an immediately recorded incoming-mail register (date, time, bidder identity, contract reference, possibly barcode) for every envelope received, independent of contents. A 'definitively sealed' envelope cannot be opened, but the outside must be registered the moment it is handed over.
Ask yourself
You are a bidder: for your last hand-delivered offer, do you have a photocopy or photo of the envelope with reception stamp? Have you stored it with date, time, and contract reference clearly visible? You are a contracting authority: on the opening day of a procurement, can you say within a minute which envelopes were handed in, by whom and when? Is there a register independent of your evaluation process?
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 →