The municipality of Meise stayed silent, and lost: how inaction after an adverse auditor’s report leads to automatic annulment
After the Council of State had already suspended, under extreme urgency, the award of the restoration of the wall paintings in the Meuzegem presbytery, the auditor proposed annulment in the annulment proceedings — and because the municipality of Meise filed no request to continue the procedure, the Council annulled the award to Ornament by the accelerated route, without any further debate and with costs against the municipality.
What happened?
On 29 December 2012 the college of mayor and aldermen of Meise decided to award Lot 2 of phase II of the restoration of the Meuzegem presbytery — the conservation and restoration of the historic wall and ceiling paintings in rooms 0.1 to 0.4 and the restoration of the stucco of the chimney breast — to Ornament. Profiel, which did not win the contract, learned of this by letter of 8 January 2013; the award report of 3 December 2012 followed only on 23 January 2013. Profiel went to the Council of State and on 7 March 2013, by judgment no. 222.769, already obtained suspension of the award decision under extreme urgency. On 22 March 2013 it brought an annulment action, against both the award to Ornament and the implicit decision not to award to it. After that, nothing more happened on the municipality’s side. It filed no reply. Auditor Frederick Eggermont, in his report notified to the municipality on 16 July 2013, proposed the annulment of both decisions. On 5 September 2013 the chief registrar sent the municipality the communication provided for in article 14quinquies of the Regent’s Decree of 23 August 1948, which opens the door to the accelerated procedure: if the defending party files no request to continue the procedure within thirty days of notification of an auditor’s report proposing annulment, the case is dealt with by the accelerated route. The municipality of Meise filed no request and did not even ask to be heard. On 10 October 2013 the Council of State accordingly annulled, without further debate, the award decision of 29 December 2012 and the implicit refusal to award to Profiel, and ordered the municipality to pay the costs of both the extreme-urgency application and the annulment action, together set at 350 euros.
Why does this matter?
This is not a procurement judgment in the classic sense — not a word about award criteria or regularity — but about something at least as decisive in practice: what happens when a contracting authority, after an adverse auditor’s report, simply stops responding. The answer is sharp. Article 30, § 3 of the coordinated laws combines with article 14quinquies of the Regent’s Decree into a mechanism in which silence equals defeat: no request to continue within thirty days, and the Council annuls by the accelerated route, without a hearing on the merits and without the authority being able to advance a single argument. For the municipality of Meise this was an understandable but expensive choice: the award was already suspended, the auditorate sided with the applicant, and litigating on seemed pointless — but it cost it the costs order and a definitively annulled award, with all the consequences for the timetable of a restoration project. For unsuccessful bidders the lesson is encouraging: a suspended award followed by a favourable auditor’s report can end in an annulment the authority no longer even tries to avert.
The lesson
For contracting authorities: the auditor’s report is no formality. If the auditor proposes annulment, a thirty-day clock starts on notification. Let it run out without a request to continue and the Council of State annuls by the accelerated route — you will not be heard and you bear the costs. If you deliberately decide not to litigate on because you accept the error, do so with open eyes and reckon with the consequences: a definitive annulment of your award, a costs order, and a contract that must be re-tendered. Consider in that case whether withdrawing your own decision is not the better route. For unsuccessful bidders: after a suspended award, pursue the annulment action and follow the auditor’s report closely. If the auditor proposes annulment and the authority stays silent, you can secure an annulment and your costs without further fight. And file your action in time — Profiel did so within the deadline and thus kept the full benefit of the suspension it had already obtained.
Ask yourself
As a contracting authority: do you know that, once an auditor’s report proposing annulment is notified, you have thirty days to file a request to continue the procedure — and that inaction leads to accelerated annulment without debate? Have you weighed the consequences: definitive annulment, a costs order, and a contract you must re-tender? As an unsuccessful bidder: do you follow the auditor’s report, so that you know when the authority’s silence starts working in your favour? And after a suspension under extreme urgency, have you actually brought your annulment action in time?
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 →