Waiting for the full evaluation report does not stop the suspension clock from running
The Council of State dismisses as out of time an extreme-urgency suspension against the designation of a preferred bidder in a PPP negotiation procedure: the fifteen-day period had already started to run on 27 November 2017, even though the temporary partnership only obtained the complete evaluation report on 16 January 2018.
What happened?
In October 2016 the city of Lommel published a European notice for a negotiated procedure with prior call for competition, for a public-private partnership 'Mudakkers' covering area development including the design and construction of a new public underground car park for 250 spaces. Of the qualified candidates, only two ultimately submitted offers: the temporary partnership B&R Development / Curaedis Group, and Kolmont Woonprojecten. On 21 November 2017 the Lommel municipal executive designated Kolmont as preferred bidder and placed the partnership in the 'waiting room'. Concretely: the city would negotiate exclusively with Kolmont first; only if those negotiations failed would the partnership come back into play. By letter and email of 27 November 2017 the city notified the partnership of the decision, attaching only an extract of the evaluation report — solely the part concerning the partnership's own offer. The partnership requested the complete evaluation report on 13 December 2017. The city initially refused: as long as negotiations with the preferred bidder were ongoing, the partnership had not been definitively excluded and would only receive the full report at final award. Only after an appeal to the Authority on Open Government did the city's lawyer transmit the full report on 16 January 2018. On 31 January 2018 — fifteen days after receiving the full report — the partnership filed an extreme-urgency suspension request. The intervening party Kolmont immediately raised an objection of late filing: the request had to be lodged within fifteen days of notification or knowledge (article 23 § 3 of the Act of 17 June 2013). According to Kolmont, that period ran from 27 November 2017, so expired on 12 December 2017 at the latest. The partnership defended itself on three lines. First: the letter of 27 November mentioned the right of appeal only 'in passing', without legal basis, time limit or competent authority. On the basis of article 35 of the Flemish Open Government Decree and article 19 second paragraph of the Coordinated Acts on the Council of State, the period would only start running four months after notification. Second: on 13 December the city's counsel had himself confirmed that the final award decision had not yet been taken and that 'the appeal period has not yet started running'. Third: without the integral report, the applicants could not assess the lawfulness of the decision, so the period should only start on 16 January 2018. The Council of State rejects all three arguments. (1) Article 9/1 of the Act of 17 June 2013 is the specific rule on indication of legal remedies in public procurement. The sanction for omission (extension by four months) is expressly limited there to the action for annulment — not the extreme-urgency suspension. Moreover, the designation of a preferred bidder in a negotiated procedure is prima facie not a mandatory notification under articles 7-9 of the same Act, so article 9/1 does not appear to apply at all. (2) The 13 December letter concerned a different decision — the still-to-be-taken final award — and not the preferred-bidder designation. The applicants could not rely on it. (3) Article 23 § 1 second paragraph (period only running once the reasoning is communicated) only applies where the Act imposes a duty to communicate — and for the preferred-bidder designation in a negotiated procedure it prima facie does not. Furthermore, the applicants themselves admitted in their request that they took knowledge of the decision on 27 November 2017. Outcome: request dismissed. The partnership and the intervening party both ordered to pay costs — the partnership each for half (court fee 400 EUR plus procedural indemnity 700 EUR to the city); Kolmont 150 EUR court fee for the intervention.
Why does this matter?
For anyone participating in a negotiated procedure with prior call for competition, this judgment is critical. The fifteen-day extreme-urgency window feels short, but the Council enforces it strictly — and the exceptions you may know from other administrative decisions (four months in case of missing remedy information) do not apply here, or at least not to the extreme-urgency procedure. There is also a deeper lesson: the designation of a preferred bidder may not even qualify as a mandatory 'notification' within the meaning of the Remedies Act. The Council says it more than once: in a negotiated procedure article 7/1 only requires information 'on request' of the bidder, and only 'on the course and progress of the negotiations' — no reasoned decision. That explains why a contracting authority enjoys far more breathing space here than in a classic open procedure. The most practical tip: do not wait for the full evaluation report. As soon as you know that you are in the waiting room and a competitor is the preferred bidder, the clock is ticking. Request the full report by all means, but in the meantime file the suspension on time on the basis of what you do know. A request can always be supplemented with additional pleas after receipt of the file — a request filed out of time can no longer be saved.
The lesson
If you receive a 'waiting room' notice in a negotiated procedure with prior call for competition: treat it as the starting point of your fifteen-day window for an extreme-urgency suspension, even if you do not yet have the full evaluation report and even if the letter merely says 'you may file a suspension' without any further detail. Do not count on a four-month extension because the indication of remedies is defective — that sanction only applies to the action for annulment. Do not count on the period starting only when you have the full report. The Council looks at whether you had 'knowledge' of the decision — not whether you knew everything. So request the full report immediately and file the suspension on time: as a rule, within fifteen days of the first communication of the decision.
Ask yourself
On day X you receive an email or letter saying that your competitor has been designated preferred bidder and that you are in the waiting room. The letter says 'you may file a suspension' but gives no time limit, no competent authority, no article. Do you have until day X+15 or until day X+4 months+15 to file an extreme-urgency suspension? Answer: day X+15. A missing or incomplete indication of remedies only extends the time for annulment — not the time for the extreme-urgency suspension. If you wait until you have the full evaluation report, you are in all likelihood out of 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 →