Suspension won, annulment lost over a single missed deadline — and the procedural indemnity is split
The temporary partnership Putman Frères/Stapotech won the suspension of the Leietheater award in March 2018, but ten months later lost its interest for the annulment because it filed no explanatory memorandum within the sixty-day period — the Council splits the costs: the contracting authority pays for the extreme-urgency phase, the applicants for the annulment.
What happened?
On 8 February 2018 the Autonomous Municipal Corporation City of Deinze awarded lot 5 (theatre techniques — lifting installation) of the new 'Leietheater' cultural centre to the Dutch BV Dutch Theatre Systems & Services (DTS2). The Belgian temporary partnership NV Putman Frères / BVBA Stapotech, not selected, went to the Council of State. Successfully: by judgment no. 241,101 of 23 March 2018 the suspension was granted — the award to DTS2 could not be performed. On 10 April 2018 they also filed an annulment application. There things went wrong. The defendant (the city of Deinze) failed to file a counter-memorandum. The registry notified this to the applicants on 19 October 2018. From that notification a sixty-day period began for the applicants to file an explanatory memorandum. That deadline was not respected. No explanatory memorandum. On 22 January 2019 the Council of State, in a judgment by acting president Johan Bovin, holds that article 21, second paragraph of the coordinated laws on the Council of State works automatically: whoever files its explanatory memorandum late is deemed to have lost its interest. The annulment application is rejected for lack of interest. The interesting twist sits in the cost allocation. The Council does not apply a strict winner-takes-all rule but splits the costs based on who 'really' won or lost on each procedural track. The extreme-urgency application was won on 23 March 2018 — there the suspension costs were placed on the city of Deinze: roll fee of 400 euros and procedural indemnity of 700 euros for the partnership. The annulment is lost because the applicants themselves failed to file the explanatory memorandum — those costs (roll fee 400 euros and contribution 40 euros, half each) fall on the applicants. The intervening party DTS2 itself bears the 150 euro intervention roll fee.
Why does this matter?
An extreme-urgency suspension is no end station. Whoever wins the suspension has won time — not the case. The contracting authority retains the option to withdraw the award decision, take a new one, or let the case die out. Whoever wants the definitive victory — annulment — must follow through on the annulment procedure correctly. There are several deadlines disconnected from the procurement issues themselves: as soon as the defendant files no counter-memorandum and the registry notifies this, a sixty-day period starts for the applicants to file an explanatory memorandum. Whoever gets sloppy here — typically because one believes 'the case is already won' after the suspension — automatically loses the annulment interest, without the Council looking at the merits. For the contracting authority the upside is this: an extreme-urgency win followed by a lost annulment means the original award decision is formally not annulled. In practice it is exhausted (the suspension made performance impossible and in dossiers with deadlines retendering is often the only way), but legally it still stands. For the bidder: the extreme-urgency application gives breathing room, not final certainty. Plan the annulment procedure as a separate track with its own deadlines.
The lesson
If you have won an extreme-urgency suspension, keep treating the annulment procedure as a full file. Note the sixty-day deadline for the explanatory memorandum in your calendar as soon as the registry notifies that the defendant filed no counter-memorandum. Miss that deadline and you lose the annulment automatically — and the award decision you just had suspended will formally never be annulled.
Ask yourself
You have won an extreme-urgency suspension on an award. Three months later you receive a letter from the registry: the defendant has filed no counter-memorandum. Have you derived from that letter the exact end date of your sixty-day period for the explanatory memorandum and put it in your calendar? Have you instructed your counsel to file that memorandum on time? Or did you let it rest because 'the case is already won'?
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 →