The other side's last memorandum is not an extension — your 30-day clock runs separately
Groentotaal loses its annulment action against the non-award of the Kasterlee green-maintenance contract because, even though the municipality filed a final memorandum, it failed to file a continuation request within 30 days of the auditor's report — total cost: 900 euros plus any chance at the contract.
What happened?
On 22 April 2015 the College of Mayor and Aldermen of the Municipality of Kasterlee notified BVBA Groentotaal that the green-maintenance contract for 2015-2016 (specifications No. 2015003) would not be awarded to it. Groentotaal filed an annulment action on 18 June 2015. The municipality filed an answer; Groentotaal replied. First auditor Jos Stevens then drafted a report proposing rejection. The report was served on Groentotaal on 19 January 2016. Then something striking happened: despite the auditor's clear advice, the municipality filed a 'final memorandum'. For a petitioner, this can create the impression that the case is still actively proceeding and that a hearing will be held. That is misleading. Article 21, seventh paragraph operates autonomously: the 30-day clock starts on service of the report — not on the last exchange between parties, not on the hearing notice. Groentotaal filed no continuation request. On 13 April 2016 — nearly three months after the report — the chief clerk sent the Article 14quater warning: deadline missed, abandonment to be declared. Groentotaal did not request a hearing. On 6 September 2016, the 12th Chamber declared the case abandoned. The municipality had requested 700 euros in procedural compensation, which was granted on top of the 200 euro court fee. Whether the action had any merit was never decided.
Why does this matter?
The auditor's report is an autonomous procedural pivot. Many bidders assume their case is 'alive' as long as briefs are still being exchanged. That is a dangerous assumption: a final memorandum from the contracting authority adds nothing to your deadline. Worse, it can lull you to sleep — your counsel receives new documents, the file looks active, but your 30-day clock keeps ticking unaffected. Miss that deadline and your action lapses automatically; you pay both the court fee (200 euros) and the other side's procedural compensation (700 euros for an average file). 900 euros for a missed diary entry — that's the typical bill.
The lesson
Treat the auditor's report as a procedural 'extension question': as soon as it arrives proposing rejection, decide whether to file a continuation request. Late memoranda or further correspondence from the other side after the report do not change your deadline. Use a file checklist that records the service date of each auditor's report and automatically generates a reminder on day 20. Have at least two people on the team monitor the deadline — a missed clerk's email is not an excusable lapse.
Ask yourself
You receive an unfavourable auditor's report on 19 January. On 28 January the other side files a final memorandum. Your counsel is reviewing the documents. You think the case is moving. It's now 15 February. Has anyone in the office actually filed the continuation request? If not: you have 4 days left — after that you lose everything, and counsel's work on the last memorandum was wasted time.
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 →