Auditor proposes dismissal: no continuation request within 30 days = abandonment and EUR 900
Trigion challenged the award of the FOD Finance's security services contract, but after first auditor Jos Stevens proposed dismissal of its appeal, it forgot to file a request to continue — result: presumption of abandonment and EUR 900 in costs.
What happened?
On 15 September 2017 the FOD Finance — represented by the Minister of Finance — awarded an open call for tenders for security services in the North Galax building at Koning Albert II-laan 33 in Brussels (specification S&L/DA/2016/137) to sprl Fact Security. NV Trigion disagreed and on 14 November 2017 went to the Council of State with an annulment appeal. The parties exchanged briefs. First auditor Jos Stevens drew up a report proposing dismissal of the appeal — bad news for Trigion. That report was notified to Trigion on 25 April 2018. From that date a 30-day period began during which Trigion had to file a 'request to continue the procedure' under article 21, seventh paragraph, of the coordinated laws on the Council of State. Without such a request, the legal presumption of abandonment applies. Trigion did nothing. On 16 July 2018 the chief clerk — at the auditor's request — sent a notification under article 14quater of the Regent's Decree of 23 August 1948. This notification gives the applicant a last chance to be heard before the Council formally finds abandonment. Here too, Trigion did not request a hearing. On 11 September 2018 the Council formally finds abandonment of the proceedings and orders Trigion to pay the costs: EUR 200 court fee and EUR 700 base procedural compensation to the Belgian State. Total bill: EUR 900 for a procedure that was never decided on the merits by the Council.
Why does this matter?
A 'negative' auditor's report is a procedural turning point. The auditor is not the judge — his proposed dismissal is not a final decision. The Council of State does not automatically follow the auditor's report, and many an applicant has eventually won despite a negative auditor's report, provided they timely requested continuation and their substantive arguments were strong. But: silence after a negative auditor's report is procedurally synonymous with giving up. No continuation request within 30 days = presumption of abandonment. The bidder loses not only the procedure but also pays the awarding authority's costs (standard EUR 700 procedural compensation + EUR 200 court fee). This is a procedural trap for bidders who — rightly or wrongly — conclude from a negative auditor's report that their appeal is lost. Whoever wants to give up should do so actively (through an explicit withdrawal with cost arrangement) or be prepared for the standard EUR 900 costs.
The lesson
If you have filed an annulment appeal and receive an auditor's report proposing dismissal: actively weigh within 30 days. If you are convinced on the merits: file a 'request to continue the procedure' and build your defence against the auditor's report. If you accept the loss: consider an explicit withdrawal with negotiated cost arrangement. Silence is the worst option — it costs you EUR 900 with nothing in return.
Ask yourself
In the past three months, have you received an auditor's report proposing dismissal of your appeal? Check today whether a continuation request was filed within 30 days of notification. If not: prepare for a finding of abandonment and EUR 900 in 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 →