Ghent lets the deadline pass after the suspension: the Gentbrugse Meersen award is annulled without a single plea being examined
After the Council of State had suspended, under extreme urgency, the award of the environmental works at the entrance zone of the Gentbrugse Meersen to Stadsbader, the city of Ghent failed to file a request for continuation of the proceedings within thirty days — whereupon the Council, in the accelerated procedure of article 17, § 4bis, annulled both the award decision and the implicit refusal to award to Krinkels without any further examination.
What happened?
On 28 June 2012 the college of mayor and aldermen of the city of Ghent awarded the public works contract 'Environmental works entrance zone Gentbrugse Meersen in Ghent/Gentbrugge' (specifications GD 13/2011) to Stadsbader of Harelbeke. Krinkels, which did not get the contract, learned of this by email of 26 July 2012 and reacted on two tracks: an action for suspension under extreme urgency and, on 4 September 2012, an action for annulment, directed against both the award to Stadsbader and the implicit decision not to award the contract to itself. The first track quickly delivered: by judgment no. 220.565 of 11 September 2012 the Council of State suspended the execution of the contested decisions. That suspension judgment was notified to the city on 14 September 2012, starting a time limit many contracting authorities underestimate: under article 17, § 4bis of the coordinated laws on the Council of State and article 15bis of the Royal Decree of 5 December 1991, the defending party (or any interested party) must request the continuation of the proceedings within thirty days of the notification of the suspension judgment. If no such request is made, an accelerated procedure follows in which the suspended decision is annulled without any substantive examination of the pleas. That is exactly what happened: the city of Ghent filed no request for continuation, none of the parties asked to be heard, and on 28 February 2013 the Council annulled both contested decisions. The city was ordered to pay the costs of the extreme-urgency action, set at 175 euros.
Why does this matter?
This judgment shows the hinge between the extreme-urgency suspension and the annulment on the merits: the thirty-day period of article 17, § 4bis. A suspension judgment is formally a provisional measure, but a contracting authority that then sits still makes it definitive — annulment follows automatically, without any debate on the merits. That inaction is not necessarily negligence: an authority that, on reading the suspension judgment, realises its award decision will not survive final review may deliberately choose not to continue the proceedings and let the annulment pass, in order to re-award or restart. But that is a strategic choice with consequences: the annulment works erga omnes and ex tunc, and the unsuccessful bidder who brought the action is in a strong position in any damages file. For bidders, the judgment illustrates the power of the double track Krinkels followed — extreme urgency for speed, annulment for certainty — and the importance of the often forgotten second contested decision: whoever also challenges the implicit refusal to award to him regains a fully restored starting position upon annulment.
The lesson
For contracting authorities: a lost extreme-urgency case is not an endpoint but a decision moment with a strict forfeiture period. Decide consciously, within thirty days of the notification of the suspension judgment, whether to continue the proceedings — to still argue your case — or to accept the annulment and redo the procurement. Do not let inaction make that choice for you, or the calendar will dictate your procurement policy. For bidders: follow Krinkels's double track and direct your action against both the award to the competitor and the implicit decision not to award to you. And after a won suspension, monitor the deadline: if the authority files no request for continuation, annulment is within reach without your having to win any substantive debate.
Ask yourself
Do you know that an extreme-urgency suspension automatically leads to annulment if no one requests the continuation of the proceedings within thirty days of the notification of the suspension judgment? As a contracting authority, do you have an internal procedure to monitor that deadline and make a conscious choice in time between defending and restarting? And as a bidder: do you challenge, besides the award to the competitor, also the implicit decision not to award the contract to you, so that an annulment fully restores your position?
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 →