Skip your own extreme-urgency hearing? Your suspension is dismissed automatically — even if the contracting authority already withdrew its decision
KITRY challenged the award of an EMPREVA IT contract to EONIX, but failed to appear at the rescheduled hearing of 7 September 2017 — result: suspension dismissed, even though the contested decision had already been withdrawn two months earlier.
What happened?
On 10 October 2016, the Minister of Public Health awarded the public contract 'IT services, consulting, software development and support' (Empreva/2016/JB/JMM — EMPREVA management tool) to SA EONIX in Mons. On 21 October 2016, KITRY filed an extreme-urgency suspension request combined with an annulment appeal. The first hearing was set for 24 November 2016 but was postponed sine die. Reason for the pause: on 20 December 2016, the contracting authority withdrew its decision. The withdrawal was notified to all bidders; none challenged the withdrawal within the deadline. The case was then rescheduled for 7 September 2017. KITRY neither appeared nor was represented. Article 4, third paragraph of the Royal Decree of 5 December 1991 is unforgiving on this point: 'If the applicant is neither present nor represented, the suspension request is dismissed'. The Council dismissed the suspension on that basis alone. For the annulment, it found the matter moot due to the withdrawal, and that article 30 §5 of the coordinated laws allowed both claims to be handled in a single judgment without a request to continue (and without the related court fees). Costs were charged to the opposing parties.
Why does this matter?
Two risks in one judgment. First: a UDN hearing isn't a formality you can skip because 'the case has become moot anyway'. Second: a withdrawal by the contracting authority is a double-edged sword. You lose the substance of your case, but you retain court fees and cost recovery — provided you respect the procedural rules. KITRY lost no substantive rights here (the award was already gone), but it did lose the signal to the authority that it had acted correctly.
The lesson
When a contracting authority withdraws your contested decision during a suspension procedure, keep following the procedure. Make sure your lawyer attends the hearing, even if the case is seemingly 'won'. Otherwise you risk having your suspension request — which may still play a procedural role in the future — automatically dismissed on a purely formal ground.
Ask yourself
Do you have a UDN or suspension procedure in which the contracting authority has withdrawn the contested decision? Before the hearing date, check whether the case has been removed from the cause list or formally declared moot. If not: arrange appearance or representation — otherwise you lose your suspension request automatically under article 4 of the UDN Royal Decree.
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 →