You won your urgency suspension, but forgot the annulment action — then the Council lifts your suspension automatically
Two months after the Council suspended in extreme urgency the award to SCA Hygiene Products of the three-year framework agreement for incontinence material at the public welfare centre of Kampenhout (judgment 233.088), it lifts that suspension automatically because ONTEX failed to file an annulment action within the legal deadline — a purely procedural automatism that did no harm in this file because the welfare centre had already withdrawn the award decision in the meantime.
What happened?
On 20 October 2015 the Council for Public Welfare of Kampenhout decided to award its supplies contract — a three-year framework agreement for incontinence material covering 2016-2019 — to SCA Hygiene Products. Unsuccessful bidder BVBA ONTEX filed an extreme-urgency action on 5 November 2015. On 1 December 2015 the Council, by judgment 233.088, suspended execution of the award decision. ONTEX had thereby achieved its immediate goal: SCA could not perform the framework agreement while the suspension stood. Then things went wrong. Under Article 17 § 4, third paragraph of the consolidated laws on the Council of State, an applicant who has obtained a suspension in extreme urgency must subsequently file a separate annulment request within the legal deadline. If they don't, the Council is 'required' (the term is mandatory) to lift the suspension. It is not a discretionary sanction, it is an automatism. ONTEX failed to file that annulment action. At the hearing on 9 February 2016 the Council recorded the absence and lifted the suspension of 1 December 2015. What makes this file interesting is the soft landing. On 15 December 2015 — two weeks after the suspension and well before the 9 February hearing — the Kampenhout welfare centre had itself withdrawn the contested award decision. The award to SCA had therefore already been wiped out by the contracting authority itself by the time the suspension was automatically lifted. The lifting therefore had no material effect — there was nothing left to suspend. The Council nonetheless applied Article 17 § 4 strictly. For the cost allocation it did look at the factual outcome: because the welfare centre had withdrawn the award on 15 December 2015 (effectively conceding ONTEX was right), the welfare centre bears the costs: EUR 200 in court fees plus EUR 700 in procedural indemnity to ONTEX. The substantive grounds of the original suspension (judgment 233.088) do not feature in this judgment — this is a procedural closing chapter.
Why does this matter?
For bid managers this is the textbook procedural trap behind an urgency-action victory. After a successful suspension you naturally feel like exhaling — the award is blocked, the other side has to regroup, mission accomplished. But your work is not legally done yet. If your urgency-action request was not combined with a separate annulment request (a strategic choice you make up front), you must still file that annulment action within the legal deadline (in public-procurement disputes normally 60 days from notification of the contested decision) — otherwise your suspension is empty. ONTEX 'survived' its mistake only because the welfare centre had already withdrawn; most often you won't be that lucky. For contracting authorities: if applicants fail to file an annulment action, you can request the lifting of the suspension without delay — the Council is required to lift it.
The lesson
As a bid manager: when filing an urgency action, immediately set a calendar reminder for the annulment-action deadline — the period runs from notification of the contested decision, not from the suspension judgment. A successful suspension without a subsequent annulment action is automatically undone under Article 17 § 4, third paragraph. As a contracting authority: after an urgency-action suspension you have two paths. Path 1: withdraw the award decision and re-tender (as Kampenhout did). Path 2: wait and see if the applicant files an annulment action in time; if they don't, you can ask under art. 17 § 4 for the suspension to be lifted and in principle revive the original award — though this is rarely advisable without a thorough reconsideration of the original defects.
Ask yourself
Did you file an urgency action without simultaneously (in the same request) formulating an annulment action? Count 60 days from the notification of the contested award decision. Still within that period — file the annulment action today. Past the deadline? Check whether the contracting authority has withdrawn the decision in the meantime — if not, your suspension will be automatically lifted at the next hearing and your original urgency-action victory will have become worthless.
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 →