A denied suspension is not the end — fail to continue within 30 days and you owe 700 euros to the other side
BLUE PLANET PROMOTIONS loses its annulment action against the rejection of its offer for police promotional items — not on the merits but because, after losing the suspension, it failed to file a request to continue the proceedings, and is hit with 900 euros in costs on top.
What happened?
On 27 November 2015, BLUE PLANET PROMOTIONS (BPP), specialised in promotional items, files an annulment request with the Council of State. It seeks annulment of a decision of the federal police declaring its offer irregular for the multi-year contract 2015 R3 192 — three years of promotional items and gifts bearing the police logo for the integrated police force and police academies — covering lots 1 to 9, 11, 13 and 14. BPP also asks for annulment of the award to its competitor and reopening of the financial evaluation with its offer included. On 11 March 2016 the Council rejects the parallel suspension request (judgment No. 234.110). The judgment is served on the parties. From service onwards, BPP has 30 days under Article 17, §7 of the coordinated laws on the Council of State to file a request to continue the proceedings — failing which the action is presumed abandoned. BPP does nothing. On 2 May 2016 the chief auditor Eric Thibaut drafts a note requesting the application of the procedure of Article 11/3 of the Regent's Decree of 23 August 1948 — the formal mechanism for declaring presumed abandonment. On 3 May 2016 the registry informs BPP that the chamber will declare abandonment unless it requests a hearing within fifteen days. BPP does not request a hearing. On 14 July 2016 acting president David De Roy declares the abandonment. The Belgian State had requested a procedural compensation of 700 euros with the standard 20% surcharge. The Council awards the base 700 euros but refuses the surcharge: Article 67, §2, third paragraph of the procedural rules provides that no surcharge is due when the Article 11/3 procedure is applied. BPP is ordered to pay 700 euros in procedural compensation and 200 euros in other costs — 900 euros in total. The substantive dispute over the irregularity of its offer was never reviewed.
Why does this matter?
Bidders who lose a suspension often think: 'that's it, we pull the plug'. But without formal action within 30 days, abandonment is legally presumed — and that presumed abandonment costs you the other side's procedural compensation. In larger files, this quickly amounts to thousands of euros. Worse: you never get a substantive review, however strong your grounds. A denied suspension says nothing about your chances on the merits — suspension tests (irreparable serious harm, prima facie serious grounds) differ materially from the substantive annulment review.
The lesson
When your suspension is denied, immediately diary the 30-day deadline from service of the judgment. Decide within that period whether to pursue — and when in doubt, file the continuation request anyway. A later tactical withdrawal costs only the court fee; a presumed abandonment due to inaction costs you the other side's procedural compensation as well. When the registry tells you that Article 11/3 is being applied, that is your last warning: you still have fifteen days to request a hearing, otherwise abandonment is final.
Ask yourself
Your suspension was denied. Service of the judgment was two weeks ago. Has your counsel filed a continuation request, or is it on the to-do list for 'next week'? If not: you have 16 days left — after that you lose both the action and pay at least 700 euros.
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 →