Auditor's report proposes dismissal — silence costs you the intervening party's fees too
Joëlle Salens loses her action against the award of the towing contract to BVBA Antak because, after the auditor's report proposed dismissal, she failed to file a continuation request within 30 days — leading to a costs order in favour of both the contracting authority and the intervening successful bidder.
What happened?
On 22 December 2014, the police board of the Vilvoorde-Machelen Police Zone awarded both lots of a towing contract (towing and storage of vehicles, 1 January to 31 December 2015, specifications No. 05/2014) to BVBA Antak from Grimbergen, on the unit prices in its bid. Competitor Joëlle Salens filed an annulment action on 3 March 2015. Antak was admitted as intervening party on 13 May 2015. Memoranda were exchanged. First auditor Jos Stevens drafted a report proposing rejection. The report was served on Salens on 24 December 2015. From that moment the 30-day deadline of Article 21, seventh paragraph of the Council of State Acts began running: without a continuation request, abandonment is presumed. Salens did not respond. On 16 February 2016 the chief clerk sent the formal notice under Article 14quater of the Regent's Decree of 23 August 1948: the deadline had expired. Salens did not request a hearing. On 6 September 2016, the 12th Chamber (acting president Johan Bovin) declared the case abandoned. The Council ordered Salens to pay 200 euros in court fees and — significantly — also 150 euros for Antak's intervention. The award decision and the implicit decision not to award to Salens were never reviewed on the merits.
Why does this matter?
The most dangerous phase of an annulment action against an award is not drafting the petition, but receiving an unfavourable auditor's report. Many petitioners — particularly individual entrepreneurs unfamiliar with administrative procedure — underestimate Article 21, seventh paragraph: 30 days to decide whether to bring the case before the bench, counting from service of the report, not from your reading of it. Miss that deadline and there is no substantive ruling, and you are ordered to pay court fees (200 euros) plus the procedural compensation of any intervening parties. Award disputes almost always feature an intervening party — the successful bidder — which increases the cost of inaction.
The lesson
On receiving an unfavourable auditor's report, immediately diary the 30-day deadline from service. A continuation request at this stage is a purely procedural step that preserves your rights — later, with more time to consult counsel, you can choose tactical withdrawal or a hearing. The auditor proposes dismissal, but not every councillor automatically follows that advice — provided the case actually reaches the bench. Inaction is more expensive than pursuit: you lose not only the case, you also pay the other side and the intervening party.
Ask yourself
You receive an auditor's report proposing rejection of your action. You're unsure about the substantive merits. Service was three weeks ago. Have you filed a continuation request? If not: you have 9 days left — after that you lose the action and pay both the court fee and the intervening party's 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 →