How to challenge an award decision in Belgium
Public procurement is all about tendering. And tendering is about winning and… losing.
Often, in-house lawyers need urgent advice on how to challenge award decisions. Here are some tips and tricks:
1. Speak up.
If you have issues with the tender documents, then ask questions or file your remarks with the contracting authority. Courts today wish to see that tenderers raised an issue instead of silently participating and merely awaiting a negative tender outcome. You can even formally request an amendment of the tender documents.
2. Be prepared.
If you are expecting an award decision, then have your commercial or technical team prepare a complete file so this can be easily transferred to a law firm, ideally in advance of the expected decision. Ask your in-house team to summarise potential issues. Don’t forget to include all correspondence with the contracting authority.
3. Watch the clock.
Once you have received a negative award decision, there are 15 days to file a suspension request. As a rule, the 15 days start to run on the day following the day that the contracting authority sends the negative award decision notification. These 15 days are calendar days! At this point, contact your lawyer as quickly as you can.
4. Try withdrawal.
Formally asking the contracting authority to reconsider its decision is an easier and cheaper way than challenging an award decision in court. Increasingly, contracting authorities accept doing so if you have sound legal arguments. But remember: filing a request for withdrawal does not suspend the 15 day period. Also, the contracting authority is not obliged to come back to your withdrawal request.
Filing a request for suspension will be stressful. Your lawyers will require a lot of input and cooperation in a short time period. So bear with them: the request for suspension is usually the only chance you have to set out your arguments.
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