Betonac pulls the plug on its own extreme-urgency challenge to Sint-Truiden’s cycle-path contract — and pays the costs
Betonac sought the extreme-urgency suspension of the award of the cycle-path and sewerage works along the N80 and N755 to Deckx (8,660,353.24 euros including VAT), but discontinued the proceedings the day before judgment — the Council of State records the discontinuance and orders Betonac to pay the costs of 175 euros, with Deckx bearing its intervention fee of 125 euros.
What happened?
On 24 August 2012 the city of Sint-Truiden awarded the contract for the construction of cycle paths and sewerage along the Naamsesteenweg N80 and the Truilingenstraat N755 to Deckx Algemene Ondernemingen, at the verified bid amount of 7,341,717.32 euros excluding VAT. The decision was communicated on 3 September 2012 to Betonac, which had not been selected. Betonac lodged an extreme-urgency application for suspension on 27 September 2012; Deckx sought and obtained leave to intervene. The case was heard on 23 October 2012, but by letter of 22 October 2012 — the eve of the hearing — Betonac’s counsel announced that it discontinued the proceedings. The Council of State could therefore only record the discontinuance, without examining a single plea. The bill followed the discontinuance: Betonac bears the costs of 175 euros, Deckx its intervention fee of 125 euros.
Why does this matter?
On the merits this judgment teaches little — there are no merits — but procedurally it shows a real outcome of many procurement disputes: the quiet retreat. Between lodging an extreme-urgency application and the hearing lie a few weeks in which the applicant gets to know the authority’s file and the auditor’s position; whoever then judges the case lost may prefer discontinuance to a judgment of rejection. Discontinuance stops the proceedings immediately, but not free of charge: the applicant bears the costs and the beneficiary’s intervention fee stays where it fell. For the authority and the chosen bidder, discontinuance means the award can be carried out definitively without the risk of suspension.
The lesson
For bidders: an extreme-urgency procedure is not a no-strings trial balloon. Weigh your chances thoroughly before filing, because even a discontinuance leaves a trail of costs and shows your cards to the other side. If you do decide to stop, do it as early as possible — that limits costs and procedural burden for everyone. For authorities and beneficiaries: a lodged application does not yet mean a suspension; a share of challenges ends without any ruling on the merits, and after discontinuance the road to concluding the contract is open.
Ask yourself
Do you make an honest assessment of your chances before lodging an extreme-urgency challenge, if need be after inspecting the administrative file? Do you know that discontinuance ends the proceedings without a ruling, but with an order for costs? And as beneficiary of an award: do you intervene in the interim proceedings, so that you do not learn the outcome — including a discontinuance — from the sidelines?
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 →