Letting a suspended contract run on — and refusing to file an administrative file 'for security reasons'? The Council of State suspends again, without any balance of interests
After the Council of State on 1 February 2016 suspended the award of the WTC III guarding contract to H-SECURITE, the Belgian State simply let the same service provider continue and refused to disclose any administrative file on the 'new' period — result: a second suspension in four weeks, with the applicant's facts accepted as proven and no vague 'safety of asylum seekers' balance to offset it.
What happened?
WTC III at Boulevard Simon Bolivar 30 in 1210 Brussels serves at the end of 2015 as a pre-reception centre for asylum candidates pending registration of their application at the Immigration Office. The Belgian Red Cross runs site A, the Dutch-speaking Red Cross site B. For the 24/7 static guarding, the Régie des Bâtiments on 13 October 2015 had awarded a one-month contract to SECURITY GUARDIAN'S INSTITUTE (S.G.I.) — twice extended, ending 31 December 2015. On 14 January 2016 the Secretary of State for Asylum and Migration signed a document titled 'avenant to the open procurement FED/0A/14/510/bewakingsdiensten/PAE' — an amendment to an earlier FEDASIL contract awarded to H-SECURITE (awarded 7 May 2015, starting 1 June 2015, running until 30 May 2019, total amount €236,400 excl. VAT). Content of the 'amendment': 24/7 guarding of WTC III sites A and B, contract from 1 January 2016 to 31 January 2016. S.G.I. went to the Council of State. In judgment no. 233.677 of 1 February 2016 the Council held that this 'amendment' was in reality a new contract and suspended the award to H-SECURITE. Then comes what this second judgment is about. S.G.I. observed — and no one disputed — that H-SECURITE simply continued the guarding after 1 February 2016, with identical staffing and the same modalities as before the suspension. On 5 February 2016 S.G.I. filed a new extreme-urgency application against 'the decision of unknown date' attributing the guarding after 1 February to H-SECURITE. In addition it requested a provisional measure: ordering the State to award the contract under a procedure compliant with the law of 15 June 2006, on penalty of a daily fine of €10,000. The Belgian State's defence was bold: there is no new award, it is simply the same suspended contract continuing. In other words: yes, we are executing it despite the suspension. Acting President Serge BODART notes this without elaboration: 'without it being necessary to consider whether to hear a party that argues from the illegality it knowingly commits by continuing to execute a contract in violation of a Council of State judgment'. The Council dismantles the argument with procedural logic. The contract of 14 January 2016 expired on 31 January 2016. It contains no extension clause. Execution from 1 February 2016 onwards therefore necessarily required a decision — be it tacit. But that decision is not in the file. Worse: the State does not file the complete administrative file within article 21 of the Council of State laws. The Council notes: in the absence of documents, it cannot verify the State's claim. The only available information is that the old contract ended on 31 January. Therefore in law: there is a new contract, however it came about. Then the first plea. S.G.I. invokes the violation of articles 5, 19, 23 and 26 of the law of 15 June 2006: award without prior competition. A negotiated procedure without publication is exceptional and to be interpreted strictly; the contracting authority must, where possible, consult several operators and must take into account the offer of an interested operator. The Belgian State does not even respond to this plea in its observations. Moreover, the State itself admits that FEDASIL had — on 22 February 2016, after the new application — invited four firms to a new negotiated procedure (FED/MPG/2016/080/SECURITY DVZ/NNS) with a deadline of 26 February. S.G.I. is one of those four. That very fact shows that the State itself considered competition possible and necessary — while in the meantime continuing the non-tendered contract with H-SECURITE. The seriousness of the plea is established. Then the balance of interests, the final hurdle. The State invokes two risks: a risk to the functioning of the Immigration Office and a risk to the safety of asylum seekers and staff. Both unfold. The first is factually wrong: the dispute concerns the guarding of the building where asylum seekers reside, not of the premises where their applications are registered. The second remains a bare assertion — the State provides no indication of the nature of the risk, no number of persons concerned, no time horizon, no alternatives, no contract duration (the Council does not even know when the new contract ends), and no administrative file enabling the Council to make the balance concrete. So no balance and no justification. The Council suspends the execution of the decision to award the WTC III guarding to H-SECURITE from 1 February 2016. Immediate execution is ordered. Costs are reserved — without express finding on the implicitly observed disregard of the first suspension.
Why does this matter?
Three lessons at once, all operationally relevant. One — a suspension judgment is binding, not informative. 'Just continuing' with the same provider after the award has been suspended is no clever procedural manoeuvre, it is a second award without competition that will be suspended again — and that with a stinging finding that the authority 'knowingly' continues to execute. Two — a contracting authority that fails to file the administrative file as required by article 21 of the Council of State laws hands its opponent victory on a silver platter: the Council takes the applicant's facts as proven. Three — a 'safety' or 'continuity of public service' argument can only carry weight in a balance of interests if it is made concrete: nature of the risk, number of persons concerned, alternatives, duration. A vague claim that 'it is sensitive and urgent' is not enough — especially not when you are simultaneously launching a regular negotiated procedure, which by definition demonstrates that it was not so urgent.
The lesson
As a rejected bidder of a suspended contract: do not look only at the suspension judgment, but actively monitor whether the contracting authority actually complies. Is the original beneficiary simply continuing to work after the suspension date? That is, in itself, a new untendered award — which you can again challenge in extreme urgency. In your application, request concrete documents (order, service contract, payment proof) or ask the Council to order the State to produce the administrative file. As a contracting authority that has just had a suspension imposed: do not tacitly continue with the same provider. Either extend through a formal, advertised emergency procedure (and motivate why a procédure négociée sans publicité is justified), or organise a swift new procedure in which several firms participate. And always file the complete administrative file; the price for not doing so is that all factual claims of the opponent are accepted.
Ask yourself
Has the Council of State suspended your award and are you still using the same provider? Test: for the period after the suspension judgment, do you have (a) a formal award decision (tacit can be enough, but traceable), (b) a legal basis (which exception of article 26 of the law of 15/06/2006 are you invoking), and (c) evidence that you consulted several operators 'where possible'? If any one of these is missing: your award is again challengeable — and if you fail to file an administrative file, the Council accepts the applicant's facts. If you want to invoke a balance of interests: do you have on paper the number of persons, the duration of the new contract, the nature of the security risks and the alternatives considered? A single assertion without figures will not work.
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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 →