Use the workaround without protest, lose the right to attack it later
The Council of State refuses to suspend an award where both BAFOs were submitted by email after the e-tendering platform failed, because the complainant itself used that very same workaround without any objection and therefore has no standing to invoke the irregularity against the winner.
What happened?
The City of Ghistel ran a procurement for landscaping works to convert a private villa garden into the public Dr. Egide Defever park, ending in a Best and Final Offer round between two contractors: Mahieu and Grondwerken Declercq. The deadline for BAFOs was 20 December 2023, with mandatory submission via the e-tendering platform under article 84 of the specifications and article 14 of the 2016 Public Procurement Act. On that exact date the platform was unavailable for this procedure — a connection failure between the city's 3P software and the platform. Mahieu flagged it about two hours before the deadline. When it became clear the other bidder faced the same issue, the city advised both bidders to submit their BAFO by email — both did. The contract was awarded to Grondwerken Declercq on 27 December 2023. Mahieu went to the Council of State arguing that Declercq's BAFO was substantially irregular for not being submitted via the platform. The Council noted that article 57, §1, of the 2017 Royal Decree explicitly allows postponement of the deadline when the platform is unavailable. Whether that option becomes a duty in such circumstances was left open — but the city did not use it, so both BAFOs were submitted irregularly. The decisive twist: Mahieu itself submitted by email without any objection. That lost it standing to invoke the very same irregularity against the winner. The hypothetical fear that information could have leaked between bidders was unsubstantiated. Application dismissed; Mahieu pays €770 in procedural costs.
Why does this matter?
Platform outages — and worse, outages that hit only your specific tender — are far more common than people assume, and the reflex response from contracting authorities ('just email it') is technically irregular. But anyone who quietly cooperates with that workaround forfeits the standing to challenge it later. For bidders: one written objection at the moment the workaround is proposed can later be the difference between an admissible claim and a dismissed one. For contracting authorities: when the platform fails, your first move should be postponement under article 57, §1, of the 2017 Royal Decree — not an email workaround.
The lesson
If e-tendering fails on the submission deadline, article 57, §1, of the 2017 Royal Decree explicitly provides for postponement (minimum 6 days below the EU threshold, 8 days above it). Do not start sending 'just email it' messages — that workaround is itself irregular. Issue a corrigendum with a new deadline. And if you are a bidder and the authority pushes a 'pragmatic' workaround: object in writing before you go along. Otherwise you lose standing to attack the award on exactly that ground.
Ask yourself
Is your contracting authority telling you to email your bid 'just this once' because e-tendering is glitching? First request a formal postponement under article 57, §1, of the 2017 Royal Decree, and flag the irregularity in writing. If you simply send your bid by email without protest, you cannot later challenge the award on that very basis.
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 →