The winner confirms the 3-week delivery by email — is that verification enough? The Council of State suspends.
The Council of State suspends, in extreme urgency, BPOST's award of a framework agreement for LED beanies to Prosafco because BPOST verified the realism of the 3-week delivery time (an award criterion) merely by asking Prosafco for confirmation — without demanding concrete justification and without addressing that verification in the award motivation.
What happened?
On 17 May 2024 BPOST launches a negotiated procedure without prior publication for a 4-year framework (renewable up to four times by 1 year) for rechargeable LED beanies with a BPOST logo. Six companies are invited; three bid: Prosafco NV, FDS Promotions and T-REX Safety. Award criteria: price (80 %) and delivery time (20 %). The tender cap is 18 weeks, and bids exceeding that are irregular. Three-week brackets score points. FDS Promotions is excluded (knit gauge non-compliant). The remaining two propose 3 weeks (Prosafco) and 18 weeks (T-REX). Prosafco scores 73.27 % on price and 20 % on delivery, for 93.27 %; T-REX totals 80 %. On 17 July 2024 BPOST awards to Prosafco; since this is a negotiated procedure without standstill, the contract is concluded on 29 July 2024. T-REX files an extreme-urgency suspension on 14 August 2024. Single plea: BPOST did not verify the realism of Prosafco's delivery time nor motivate its decision. T-REX argues the beanies are custom-made in China by a single shared supplier who told T-REX delivery in 3 weeks is logistically impossible. BPOST answers that no bidder raised any concern during the procedure and that it did ask Prosafco to confirm it could deliver in 3 weeks — Prosafco unreservedly did. The Council of State rejects this: "Effective verification of the realistic character of the delivery time required the contracting authority not merely to ask for confirmation but to invite the bidder to justify this concretely." Moreover, the award decision contains no trace of the BPOST-Prosafco exchange, so neither T-REX nor the Council can verify whether BPOST actually assessed realism. The absence of pre-bid objections is irrelevant. Balance of interests: BPOST identifies no negative consequences of a suspension outweighing its benefits. Suspension ordered with immediate effect; costs reserved.
Why does this matter?
This ruling follows C.E. 25 January 2022, n° 252.751, ASBL Cohezio, and sharpens the demands. When delivery time is an award criterion, the contracting authority must actively verify its realism, not simply accept the bid. An email asking "can you confirm?" with a "yes" does not suffice: concrete, documented justification (production schedule, supplier confirmations, logistical plans) is required, and that verification must be expressly addressed in the award motivation. The absence of pre-bid objections does not relieve the authority of this duty. For bidders suspecting a competitor has offered an unrealistic delivery time: this ruling provides a concrete lever for a UDN suspension — even after the contract has been concluded in a no-standstill procedure.
The lesson
As contracting authority: when delivery time is an award criterion and one bidder offers a markedly shorter period than the others, a confirmation email is not enough. Require concrete substantiation — production schedule, supplier orders, capacity calculations — and assess it. Include the entire exchange and your assessment in the motivated award decision so that ex-post review is possible. As bidder: if a competitor offers a delivery time that appears technically unfeasible and the award decision shows no trace of a substantiated verification, you have a strong ground for UDN — even in a procedure without standstill.
Ask yourself
As contracting authority: does my award motivation describe concretely how I verified the feasibility of the offered delivery time, including the substantiation the winner provided? If not, add it before sending. As bidder: if the award is based on a delivery time at least 50 % shorter than yours, check whether the motivation shows anything beyond "confirmation requested".
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 →