A petition about the electricity supply to trailers, while the tender form was missing: the Council of State dismisses and charges 996 euros
SPAQUE rejected the tender of Gimmicks to Workflows for the demolition of the Marchienne coking plant because the tender form was missing — a requirement the specifications expressly designated as substantial — but the extreme-urgency petition attacked an entirely different ground, namely prescriptions on the electricity supply to trailers, so the plea lacked any factual basis and the application was dismissed with 996 euros in costs against the applicant.
What happened?
SPAQUE, the Walloon remediation company, adopted on 31 October 2025 the specifications CSC2025-44 for a European works contract, ‘Rehabilitation of the Marchienne coking plant site (CARSID) at Marchienne-au-Pont — Demolition of buildings and structures’, to be awarded by open procedure. The contract notice appeared on 13 November 2025 on e-Procurement and in the Official Journal of the European Union, followed by several corrigenda. Article A.11 of the specifications was unusually explicit: beyond the cases that article 76 of the royal decree of 18 April 2017 itself deems substantial, it listed exhaustively which formalities SPAQUE regarded as substantial requirements — drafting the tender in French, and attaching to it the duly completed tender form, the bill of quantities and the ESPD, written or translated into French. Eight bidders tendered, including Gimmicks to Workflows. On 16 June 2026, on the basis of the tender analysis report, SPAQUE awarded the contract to Verhelst Group for 5,538,259.00 euros excluding VAT, or 6,701,293.39 euros including VAT. As to the applicant, that report found that its tender ‘does not contain the tender form’ and that the presence of that document constituted for the contracting authority a substantial requirement, rendering the tender substantially irregular; it was excluded from further analysis. The decision was notified on 18 June 2026 by registered mail and by email. On 3 July 2026 Gimmicks to Workflows — then still without a lawyer — applied for suspension under extreme urgency; the hearing followed on 22 July 2026. SPAQUE first raised an objection of inadmissibility: the applicant should have attached to its petition its articles of association, the instrument appointing its organs and proof of the decision to bring proceedings. The Council rejected that objection in two steps. Failing to produce the published and coordinated articles is not a ground of inadmissibility but a ground for not entering the case on the roll (article 3bis, first paragraph, 1°, of the Regent’s Decree of 23 August 1948) — and precisely that provision was not made applicable to extreme-urgency applications by the royal decree of 19 November 2024. Moreover, the articles published in the annexes to the Belgian Official Gazette of 24 October 2024 showed that Ms N.B., who signed and electronically filed the petition, was the sole member of the administrative organ and empowered to represent the company alone; she therefore did not have to produce a separate decision to litigate. Dismissing the application on those grounds would, the Council said, amount to ‘excessive formalism’. On the merits, however, things went wrong. The petition contained no heading for pleas; the argument sat in the section on urgency and concluded that ‘the disregard of the prescriptions relating to the electricity supply to the trailers in no way alters the object of the contract’. But that was not the ground: SPAQUE had rejected the tender because the tender form was missing. The plea therefore lacked any factual basis. The Council recalled article 76 of the royal decree of 18 April 2017 and stressed that not only the requirements expressly designated as substantial in the contract documents, but also the minimum requirements, count as substantial. The applicant disputed neither that its tender lacked the form, nor that the specifications elevated that document to a substantial requirement, and it did not explain why the rejection would be a manifest error of assessment. The formal statement of reasons was sufficient and adequate, no complaint was serious, and the application was dismissed. SPAQUE had also sought damages for a vexatious and reckless action under article 27 of the law of 17 June 2013; the Council refused that at this stage, partly because SPAQUE had itself thought it useful to rebut the applicant’s argument over several pages, and because the tender price had never been analysed or ranked. The applicant did have to bear the costs: 200 euros roll fee, 26 euros contribution and 770 euros procedural indemnity for SPAQUE. Finally, the Council ordered the confidentiality of the tender documents — including parts of the applicant’s own tender which, on its own account, it had placed among the non-confidential documents on the electronic platform through ‘a handling error’.
Why does this matter?
Two lessons that have nothing to do with each other, yet sit in the same judgment. The first is encouraging for anyone going to the Council of State without a lawyer: the absence of the published articles of association from the petition is not a ground of inadmissibility but a ground for not entering the case on the roll, and that ground was not made applicable to the extreme-urgency procedure by the royal decree of 19 November 2024. Someone who, as sole director, can represent the company alone need not produce a separate decision to litigate. The Council expressly calls the opposite reading excessive formalism — a sentence that will be useful in later files. The second lesson is unforgiving. An extreme-urgency application stands or falls on a single serious plea, and a plea that attacks the wrong ground of decision is no plea at all. Here the petition was about the electricity supply to trailers, while the tender had been rejected for a missing tender form — a ground the applicant never contested. The finding ‘le moyen manque en fait’ then ends the debate without the Council reaching the merits. Added to that, article 76 of the royal decree of 18 April 2017 leaves the contracting authority no margin of appreciation in an open procedure: if a requirement is designated as substantial in the specifications and is not met, the tender must be declared void. A set of specifications that, as here, exhaustively lists which documents are substantial is therefore not a non-committal enumeration but a list where every line can cost you the file. For a 5.5-million-euro contract, that is an expensive reminder of the value of a submission checklist.
The lesson
Before writing a petition, read the contested decision and attack the ground it actually contains. A plea that attacks a different statement of reasons — however well constructed — lacks a factual basis and will not be examined. Give your pleas a recognisable structure, too: the Council notes drily here that the petition contained no ‘pleas’ heading and that the argument sat in the urgency section. If you want to challenge the rejection of your tender, expressly dispute one of three things: that the defect exists, that the specifications elevate the requirement to a substantial one, or that the authority made a manifest error of assessment — and explain why. As a bidder: treat the list of substantial documents in the specifications as a checklist and verify before submission that the tender form, the bill of quantities and the ESPD are actually in the package you filed; in an open procedure the authority has no choice and cannot save you. Make sure you master the confidentiality settings of the e-Procurement platform as well — here parts of the applicant’s own tender ended up among the non-confidential documents by accident. As a contracting authority: it pays, as SPAQUE did, to name exhaustively and explicitly in the specifications which formalities are substantial; that makes a later rejection all but unassailable. Do not rush, though, to claim damages for a vexatious action: someone who needed pages to rebut the argument will struggle to obtain them.
Ask yourself
Have you challenged, in your petition, the ground the contracting authority actually used, rather than a ground from another file? Does your petition contain a clearly identified plea, or is your argument scattered through the urgency section? Do you concretely dispute the existence of the defect, its substantial character, or the assessment — and do you explain why? As a bidder: have you ticked off one by one the list of documents designated as substantial in the specifications against what you actually submitted? Do you know that in an open procedure the authority is obliged to declare your tender void as soon as one substantial requirement is missing? And if you litigate without a lawyer: do you know that the absence of your articles of association does not render an extreme-urgency application inadmissible?
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 →