One judgment for suspension and annulment when the contracting authority withdraws mid-stream — no continuation tax
Cofely Services attacks an irregularity finding and an award by the Federal Police via extreme-urgency suspension; when the police withdraw the decision during the proceedings, the Council handles suspension and annulment in a single judgment without Cofely needing to file a continuation request or pay the related tax.
What happened?
On 21 December 2017 Cofely Services filed an extreme-urgency (UDN) suspension request against a Federal Police Service Procurement decision notified by registered mail of 6 December 2017 declaring Cofely's offer irregular and awarding to a competitor a multi-year framework agreement for maintenance of the federal police site at Neufchâteau (Avenue de la Gare 20). On 2 February 2018 Cofely also filed an annulment action against the same decision. An order of 27 December 2017 set the case for 16 January 2018, but letters of 10 January 2018 postponed sine die. The reason: the contracting authority was moving. The contested decision was withdrawn on an unspecified date; the withdrawal was notified to all bidders by registered mail of 8 January 2018, posted on 9 January 2018, mentioning the appeal procedures and time limits. No bidder — including Cofely — filed annulment proceedings against the withdrawal within the statutory period, making it final. On 19 December 2018 the case was finally heard by the Sixth Chamber, chaired by Imre Kovalovszky. Article 30 § 5 of the coordinated Council of State Acts now comes into play. That provision states that when the Council is seised of both a suspension and an annulment request and the contested act is withdrawn during the suspension proceedings, the Council can rule on both in a single judgment 'without need for a continuation request and without the related tax being due'. That is what happens here: both the UDN action and the annulment action are declared moot. For procedural indemnity the Council applies the same reasoning as in other withdrawal cases. Cofely asked €840. The Belgian State did not invoke any element to reduce the amount. The withdrawal is a 'succedaneum' for annulment (article 30/1), so the State is the losing party. But — the routine part — no increase is possible under article 67 § 2 third subparagraph: once withdrawn, no increase. Cofely gets €700 (base) and the State bears €200 in other costs. First auditor Laurent Jans gave a conforming opinion.
Why does this matter?
When you have two actions on the table — UDN suspension and annulment on the merits — and the contracting authority withdraws mid-stream, you do not need to file a separate continuation request to close out the annulment action. The Council handles both in one judgment. That matters in practice: continuation requests usually require a separate tax, and without continuation the annulment falls away automatically. Article 30 § 5 of the coordinated Council of State Acts saves you that procedural step and that cost in withdrawal scenarios. For applicants who routinely stack a suspension and an annulment in procurement disputes this is a meaningful saving and simplification. For contracting authorities the signal is again: your withdrawal is no clean victory for the other side, but a fast and predictable procedural close with a limited indemnity (€700 base, no 20% increase).
The lesson
If you have a UDN suspension and an annulment action running together and the contracting authority withdraws the contested decision during the suspension proceedings, do not file a separate continuation request for the annulment. Article 30 § 5 makes that unnecessary. The Council handles both in one judgment, you pay no continuation tax, and you get €700 base indemnity (no 20% increase, because withdrawn).
Ask yourself
You have stacked a UDN suspension and an annulment, and the contracting authority withdraws mid-stream. Do you risk losing your annulment for failing to file a continuation request? Answer: no — article 30 § 5 settles both in a single judgment, without tax.
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 →