Silence after the lost urgency round: construction joint venture CEI-De Meyer-CFE deemed to abandon the Jan Palfijn case
The joint venture of CEI-De Meyer and CFE, passed over as preferred bidder for the AZ Jan Palfijn Gent construction project (where Cordeel Zetel Temse was preferred), failed to request the continuation of its annulment action within thirty days after its urgency application was rejected, so the Council of State recorded the statutory presumption of abandonment — without ever ruling on the shortlist or the preferred bidder.
What happened?
For its construction project, AZ Jan Palfijn Gent ran a procedure in which three shortlisted tenderers were invited to submit a BAFO (best and final offer). By decision of 21 December 2011, Besix and Cordeel Zetel Temse NV, among others, made the shortlist; by decision of 27 March 2012 the hospital designated Cordeel as preferred bidder and did not retain the tender of the joint venture CEI-De Meyer-CFE (MBG). The joint venture contested both decisions: first with an application for suspension under extreme urgency, which the Council of State rejected by judgment no. 219.519 of 29 May 2012, and in parallel with an annulment action of 25 May 2012. After the suspension judgment was served on 30 May 2012, the joint venture had thirty days to file a request for continuation of the proceedings (article 17, § 4ter of the coordinated laws). No such request came, not even after the registry’s express notification of 20 July 2012, and nobody asked to be heard. The Council could then only record the presumption of abandonment. The composition of the shortlist and the choice of preferred bidder were never judged on the merits.
Why does this matter?
The judgment illustrates the second great pitfall in procurement litigation after a lost urgency round (besides the brief deadlines): whoever sees their urgency application rejected must, within thirty days of service of that judgment, expressly request the continuation of the annulment proceedings — otherwise they are deemed to abandon the entire case. In practice this is often a deliberate choice: after losing the suspension round, large contractors such as CEI-De Meyer and CFE weigh the odds and the relational cost of litigating on, and let the case quietly expire. The mechanism of article 17, § 4ter gives that silence a formal end. For those who do want to continue, the lesson is sharp: the deadline is short, runs automatically and is not interrupted by behind-the-scenes negotiations.
The lesson
For tenderers: decide immediately after a lost urgency judgment whether you want to continue the annulment proceedings, and file the request for continuation within the thirty days — an informal intention does not suffice. If you want to let the case rest, doing nothing is a valid exit, but be aware that the proceedings thereby end definitively. For contracting authorities: after winning the urgency round, monitor the thirty-day period; if no request for continuation appears, the litigation is silently closed and the project can proceed with certainty.
Ask yourself
Do you know that after the rejection of a suspension application, the annulment proceedings only survive if you expressly request continuation within thirty days of service? Is that decision — continue or let expire — a deliberate, documented choice on your side rather than an oversight? And as a contracting authority, do you track that deadline to know when you may definitively contract?
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 →