Improved tenders by email instead of e-Procurement: the Chamber loses the Palace of the Nation façade contract
The Belgian Chamber of Representatives and the Senate ranked MA2 Project and ORIGIN Architecture & Engineering as equivalent for the architectural services contract for the renovation of the façade of the Palace of the Nation, invited both bidders to improve their tenders, and let those improvements come in by ordinary email — although their own contract documents required submission through e-Procurement with a qualified electronic signature — whereupon the Council of State annulled the award to ORIGIN under the abridged procedure of article 17, § 9.
What happened?
The Chamber of Representatives and the Senate jointly tendered a public services contract for architectural services for the renovation of the façade of the Palace of the Nation. Point D.3 of the contract documents was unambiguous: the tender had to arrive by Tuesday 22 April 2025 at 12.00, exclusively by electronic means through the e-Procurement platform, and had to be signed with a valid qualified electronic signature of a competent person — ‘a scanned signature does not suffice’. After analysing the tenders, the authorities concluded that those of MA2 Project and ORIGIN Architecture & Engineering were of equivalent quality against the award criteria. Applying article 87, § 2, of the Royal Decree of 18 April 2017, they invited both bidders to improve their tenders, instructing them to send their written reply by email to an address of the Chamber. On 22 September 2025 the Chamber told MA2 Project by email that, ‘in order to treat all bidders identically’, the replies would not be read before 16.00 that evening, the final moment for replies. By decisions of 25 November and 1 December 2025 respectively, notified to MA2 Project on 2 December 2025, the Chamber and the Senate awarded the contract to ORIGIN. On 16 December 2025 MA2 Project sought the suspension and annulment of that award and of the implicit decision not to award the contract to it. By judgment no. 265.475 of 20 January 2026 the Council rejected the action as inadmissible in its second object — an unsuccessful bidder can challenge the implicit refusal only by showing that the contract had to be awarded to it — but suspended the award decision because the second plea, in its second branch, was serious. The reasoning: by having the improved tenders submitted by email, the authorities used an ordinary electronic means of communication within the meaning of article 14, § 1, of the Law of 17 June 2016, which does not offer the same safeguards against abuse as a platform within the meaning of article 14, § 7 — no assurance that nobody could access the data before the deadline, no clearly detectable breaches. An email in which the Chamber promises to read nothing before 16.00 cannot reasonably be equated with those safeguards. The authorities argued that an improvement is not a new tender but a mere communication, comparable to a price justification (art. 36, § 2) or to maintaining a tender without reservation (art. 89, second paragraph). The Council disagreed: an improvement under article 87, § 2, allows essential elements such as price to change, compels at least a partial re-evaluation and may overturn the ranking. It must therefore be equated with the submission of a final tender, and article 14, § 7, draws no distinction between a final tender and the tender originally submitted. That MA2 Project had itself replied by email did not affect its interest: that method had been imposed on it. Neither the defending parties nor the interested third party filed a request to continue the proceedings within thirty days of notification of the suspension judgment. Auditor Philippe Nicodème asked, in a note of 4 March 2026, for article 11/2 of the general rules of procedure to be applied; no party asked to be heard. MA2 Project, for its part, did not request continuation after the rejection of the second object, so under article 17, § 10, it is presumed to have withdrawn that part of its action. The VIth chamber saw no reason to depart from the suspension judgment, held the second branch of the second plea founded and annulled the award decision. MA2 Project claimed a procedural indemnity of 924 euros; since no increase is due where article 11/2 applies, the Council granted 770 euros. The Chamber and the Senate each bear half the costs: 200 euros roll fee, 26 euros contribution and that 770 euros.
Why does this matter?
The question settled here occupies every contracting authority that has ever faced two equally ranked tenders: is the improvement invited by article 87, § 2, a new tender, or simply another item of correspondence? The Council of State opts firmly for the first, with an argument that reaches beyond the text: whatever can overturn the ranking is a tender. With that come all the formal requirements — submission through the platform of article 14, § 7, a submission report, a qualified signature of a competent person, and the sanction of article 76, § 1, fourth paragraph, which makes its absence a substantial irregularity. Equally important is what the judgment says about interest. The Chamber objected that MA2 Project had itself replied by email and could therefore not complain. The Council answers that interest in a plea is measured by the harm the alleged breach caused or risked causing: a bidder deprived of the statutory certainty that its improved price stayed secret until the deadline is harmed by that alone, without proof that anything went wrong. A promise by the authority is no substitute for a technical safeguard. Finally, the case shows how economical the sequel to a suspension can be: if nobody files a request to continue within thirty days, the Council can annul without a hearing under article 17, § 9, and article 11/2 — the flip side for the applicant being the loss of the increase in the procedural indemnity, here the difference between 924 and 770 euros.
The lesson
If, as a contracting authority, you invite two equally ranked bidders to improve their tenders, have those improvements come in by exactly the same route as the original tenders: through the e-Procurement platform, with a submission report and a qualified signature. An email address of your department is a means of communication, not a platform, and a promise that you will read the replies only after the deadline is legally worthless. Remember too that your own contract documents bind you: point D.3 prescribed e-Procurement, and the principle patere legem quam ipse fecisti makes any departure from it unlawful in itself. As a bidder you learn two things here. First, having followed the imposed method does not deprive you of the right to challenge it — the choice was not yours. Second, it is enough to show that you were deprived of safeguards; you need not prove a leak or manipulation. Flag the irregularity at once if you can, but know that the plea survives even raised later. And where the authority does not seek continuation after a suspension, expect an annulment on the papers and a procedural indemnity without the increase.
Ask yourself
Do you treat an improvement under article 87, § 2, of the Royal Decree as a full final tender, submitted through e-Procurement with a submission report and a qualified signature? Or do you let it come in by email because that is quicker? Have you checked that the submission arrangements you imposed in your own contract documents are respected at every stage of the procedure — including the stages you only devise along the way? Do you realise, as a bidder, that you can challenge an irregular method even though you followed it yourself, as long as the authority imposed it on you? And do you know that the loss of a statutory safeguard is in itself sufficient harm, without proof that your price was actually read too early?
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 →