The National Lottery claims it withdrew the award decision itself — but without proof, the Council of State annulled anyway
After a suspension in extreme urgency the National Lottery let the 30-day window to request continuation of the procedure expire unused, later claimed the award decision had been 'withdrawn' but produced no document evidencing that — result: the Council of State annulled the decision for the sake of legal certainty.
What happened?
In 2014 the National Lottery organised a public procurement for legal services — advice and judicial representation. The contract (reference OPI/PRO/RM/KH/GVDD/2014/23) was divided into lots. Lot 2, with some irony, concerned 'public procurement law' itself. DEPREVERNET submitted an offer for that lot. On 10 March 2015 the Lottery's board took two decisions together: DEPREVERNET's offer was rejected as irregular, and lot 2 was awarded to Carlos De Wolf. DEPREVERNET filed an extreme-urgency application with the Council of State. By judgment no. 231.155 of 7 May 2015 the Council suspended both contested decisions. Then comes the procedural gap. Article 17, § 6 of the coordinated laws on the Council of State provides that after a suspension judgment the opposing party (or any interested party) must file a 'request to continue the procedure' within thirty days — otherwise the contested act is annulled in an accelerated procedure. The Lottery did neither. No continuation request, no request to be heard. On 4 August 2015 the registry informed the parties that the chamber would rule on annulment. On 28 August 2015 the Lottery's counsel sent a letter claiming the contested decision had been 'withdrawn'. But no document in the file evidenced that withdrawal, nor its definitive character. Under the rules of legal certainty the contested decision would otherwise remain in the legal order. Acting President David De Roy therefore concluded that annulment was needed for safety. The result: article 1 of the judgment annuls the decisions of 10 March 2015 rejecting DEPREVERNET's offer and awarding the lot to Carlos De Wolf. The Lottery is ordered to pay €700 in procedural indemnity and €200 in additional costs.
Why does this matter?
Many contracting authorities believe that if they 'after the suspension' simply withdraw the award decision, the case automatically dies away — and that they need not observe any further formalities. This judgment teaches the opposite. A suspension judgment starts a ticking clock: within thirty days the opposing party must actively file a continuation request, or the contested decision is annulled by the Council itself in an accelerated procedure. Anyone who, during that waiting period, claims it has all been 'taken care of' must back that up with formal documents — a letter from counsel is not enough. For the rejected bidder this means that a won suspension in extreme urgency yields a near-automatic annulment when the contracting authority fails to actively continue.
The lesson
As a rejected bidder: after a suspension judgment count thirty days. Has the contracting authority filed no continuation request within that period? Then you are in near-automatic annulment territory — write to the registry to activate the accelerated procedure (art. 11/2 of the Regent's Decree) if it does not happen on its own. As a contracting authority: a suspension judgment is not an end but the start of a deadline. If you want to continue defending the case on the merits, file the continuation request within 30 days. If you want to actually withdraw the award, do so with a formal withdrawal decision by the competent body, attach it to the procedural file with the Council and prove its definitive character — a 'we have withdrawn' letter from your counsel does not suffice and ends in annulment with costs.
Ask yourself
If you have won a suspension: how many days since the judgment was served? More than thirty with no continuation request from the other side? Then you are in accelerated-annulment territory. If you have lost a suspension as a contracting authority: have you, within 30 days of service, filed a continuation request, or provided the Council with a formal withdrawal decision and proof of it (minutes of the board, not just a letter from your lawyer)? Neither? Expect an annulment and costs.
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 →