Fifteen days, counted from notification: why Truck Service Sebastian was too late with its extreme-urgency suspension, and why the municipality did not have to mention that remedy
Truck Service Sebastian sought the extreme-urgency suspension of the municipality of Grâce-Hollogne's award of a container truck, but the Council of State found the application time-barred because the fifteen-day period of article 23, § 3 of the Law of 17 June 2013 was already running from the notification of 28 October 2013 — and the municipality was not obliged to mention the possibility of a suspension application in that notification, as that obligation applies only to the annulment action.
What happened?
By a decision of its college of mayor and aldermen of 21 October 2013, the municipality of Grâce-Hollogne awarded a public supply contract for a new container truck with crane, coupled with the trade-in of a used truck. The unsuccessful bidder, Truck Service Sebastian, was notified of that decision by registered letter of 28 October 2013 and by email of 30 October 2013. Yet the company waited until 19 December 2013 to file a suspension application under extreme urgency; in parallel it had also brought an annulment action against the same decision. The municipality raised a plea of inadmissibility ratione temporis: article 23, § 3 of the Law of 17 June 2013 requires a suspension application to be lodged within fifteen days, and that period had long expired. Truck Service Sebastian countered that the municipality's letter of 28 October 2013 had mentioned the annulment action but not the possibility of a suspension application, so that the period could not run. It relied on article 8 of the Law of 17 June 2013 and on article 19 of the coordinated laws on the Council of State. The Council of State did not follow that argument. The Law of 17 June 2013 provides no sanction where the remedies it organises are not mentioned in the notification, and does not even impose an obligation to mention them; article 8 contains no such obligation either. Through article 25 of that same law, one must then fall back on the Council's own rules of procedure. Article 19, second paragraph, of the coordinated laws does provide that the limitation periods only start to run if the notification states the existence of the remedies and the forms and time limits to be observed, but that rule applies solely to the actions referred to in article 14, § 1 — the annulment actions — and not to suspension applications, which are governed by article 17. As the contested act had been notified on 28 October 2013 (registered) and 30 October 2013 (email), which was not disputed, and the suspension application was only filed on 19 December 2013, it was out of time and therefore inadmissible. The intervention of Scantec also failed: that company produced no document proving its capacity to act and its decision to litigate. The Council rejected the suspension application and the intervention, and placed the costs of the intervention (125 euros) on Scantec; the remaining costs were reserved.
Why does this matter?
This judgment sharply explains where the fifteen-day period for an extreme-urgency suspension in procurement cases begins, and it refutes a tempting but mistaken line of reasoning. An unsuccessful bidder might think the clock only starts once the authority has neatly listed all remedies, suspension included. The Council makes clear that this is not so. The obligation to state the existence, form and time limit of a remedy — the familiar safeguard of article 19 of the coordinated laws — applies only to the annulment action. For the suspension application no such obligation exists, and the absence of a mention therefore does not stop the period. In practice this means the authority already meets its notification duty by mentioning the annulment action, while the much shorter and far more urgent suspension period is running relentlessly from the notification itself. For anyone who wants to stop an award before the contract is performed, that is the difference between being on time and being left empty-handed.
The lesson
If you are an unsuccessful bidder and want to stop an award from being performed, count the fifteen-day period of article 23, § 3 of the Law of 17 June 2013 from the first notification of the decision — the registered letter or the email — and not from the moment you feel you have been fully informed. Do not assume that the suspension remedy must appear in the notification: that obligation applies only to the annulment action. When in doubt, file in time and contest the lateness afterwards. If you are the authority, this judgment confirms that you are not obliged to mention the suspension application in your notification, but it is wise to state the annulment action — with its form and time limit — correctly and completely, because that is precisely where your period only starts to run once you do so. Anyone wishing to intervene should have the proof of its capacity to act and of its decision to litigate ready from the outset; without those documents the intervention is inadmissible.
Ask yourself
Do you know from what moment your fifteen-day period for an extreme-urgency suspension runs — the notification of the decision, not the moment you consider yourself fully informed? Do you realise that an authority is not obliged to point out the possibility of a suspension application in its notification, and that the absence of that mention does not halt your period? Are you not confusing the safeguard of article 19 — which applies only to the annulment action — with the much shorter suspension period? And if you wish to intervene: do you have the documents proving your capacity to act and your decision to litigate ready straight away?
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 →