Suspension won, award withdrawn, appeal dismissed — and still EUR 1,240 in costs for the city
The City of Brussels lost the suspension procedure against Buggenhouts Tegelhuis in March 2017, filed no continuation request after the auditor proposed annulment, and then withdrew its own award decision — result: the appeal is dismissed as 'without object' but the city pays EUR 1,240 in costs.
What happened?
On 22 December 2016 the College of Mayor and Aldermen of Brussels approved the award report of a framework agreement for tile-laying works in municipal buildings (private and public domain) and in buildings of the police zone Brussels-Capital/Ixelles — lot 1. Buggenhouts Tegelhuis disagreed and on 19 April 2017 went to the Council of State. First it won its suspension appeal: judgment 237,869 of 30 March 2017 suspended the execution of the award decision. Then came the annulment procedure on the merits. Auditor Ines Martens proposed in her report that the contested decision be annulled. That report was notified to the city of Brussels on 22 December 2017. From that date a 30-day period began during which the city — as defendant — had to actively request continuation of the procedure under article 30, §3 of the coordinated laws on the Council of State and article 14quinquies of the Regent's Decree of 23 August 1948. If it does not do so, the Council can annul the contested decision via 'accelerated procedure'. The city received on 5 February 2018 a notification from the chief clerk (last chance to be heard) — and did nothing. But the city had meanwhile taken action on another track: on 22 June 2017 the College had withdrawn its own award decision. It informed the Council of this by letter of 10 January 2018. Result: there is no 'contested decision' left to annul. The Council dismisses the appeal as without object. But — and this is the point for bidders: the Council orders the city to pay the costs. Concretely: EUR 400 in court fees (twice EUR 200 for the extreme-urgency suspension and the annulment procedure) and EUR 840 procedural compensation to Buggenhouts Tegelhuis. Total: EUR 1,240 to the City of Brussels — on top of the fact that the award is withdrawn and the market must be re-tendered or re-evaluated.
Why does this matter?
For bidders this is an important reassurance: 'dismissal as without object' is NOT a defeat. When the awarding authority decides, after losing a suspension procedure, to withdraw its award decision, the bidder gets both the desired result (the award is gone) and its procedural costs back — including the full procedural compensation of EUR 840. For awarding authorities this is a warning: a lost suspension procedure cannot be dealt with by passivity. Whoever does not file a continuation request after an auditor's report proposing annulment implicitly chooses the accelerated procedure — which always ends in annulment. The only way out is then a formal withdrawal, but that still costs at least EUR 1,240 plus all the time lost from a re-tender or re-evaluation.
The lesson
If as a bidder you win a suspension and the awarding authority then goes silent: usually within a few months a withdrawal of the award decision follows. You don't have to do anything special — the procedure runs on and you get your EUR 840 procedural compensation plus court fees back. If as an awarding authority you lost a suspension and the auditor's report proposes annulment: file a continuation request (and build a strong defence) or withdraw the decision before the auditor's report comes — that saves at least EUR 200 in court fees.
Ask yourself
As an awarding authority: lost a suspension, the auditor's report proposes annulment — did you file a continuation request within 30 days? If not: withdraw the decision now and re-tender, and accept that EUR 1,240 in costs will go to the other side. Waiting only increases the damage.
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 →