Annulment of postal services award to bpost — Postalia's offer declared irregular based on unlawful technical specifications (self-franking requirement) — request for maintenance of effects rejected
The Council of State annulled the IPFBW's decision of 12 October 2021 awarding the postal services contract to bpost and declaring POSTALIA BELGIUM's offer substantially irregular, as the reproached irregularity — failure to offer self-franking by member entities — stemmed from technical specifications found unlawful by companion ruling 262.133 — the request for maintenance of effects (Article 14ter) was rejected.
What happened?
This case is the companion to ruling 262.133, by which the Council annulled the approval of specifications for the postal services contract. Here, POSTALIA challenges the award decision of 12 October 2021 declaring its offer substantially irregular and awarding the contract to bpost. POSTALIA's offer was rejected because, as a routing service provider, it proposed 'Port Payé' franking rather than self-franking by member entities as required by the specifications. Bpost intervened as beneficiary of the award. The Council held that since ruling 262.133 found the specification unlawful, the irregularity reproached to POSTALIA's offer was based on an illegal requirement. The award was annulled. Bpost's request for maintenance of effects until 31 December 2025 under Article 14ter was rejected: the postal continuity argument was insufficient as the Postal Act of 26 January 2018 requires bpost, as universal service provider, to provide postal services regardless of any procurement contract. Costs charged to the respondent.
Why does this matter?
This ruling confirms that when specifications are annulled for unlawful technical requirements, the award decision based on those specifications must also be annulled. An offer cannot be declared irregular for non-compliance with an unlawful specification. The rejection of the maintenance of effects request is instructive: postal continuity is ensured by law (universal service obligations), so annulment does not create a legal vacuum.
The lesson
As a contracting authority: if specifications are annulled, the award based on them will fall too. Do not declare an offer irregular solely for non-compliance with a specification of questionable legality. As a tenderer: when your offer is declared irregular due to a specification you consider unlawful, challenge both the specifications and the award simultaneously. The maintenance of effects requires concretely demonstrated exceptional circumstances.
Ask yourself
Does the award rely on specifications whose legality is being challenged? Does the irregularity reproached to a tenderer stem from a specification of doubtful proportionality? For maintenance of effects: are exceptional circumstances concretely demonstrated?
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 →