The Flemish Community asked for €2,800 in procedural costs after a forfeiture of action — the Council reduced it to the standard €700
Henk De Four missed the thirty-day deadline to request continuation of his annulment proceedings against being declared irregular in the Flemish Disaster Fund tender; the Flemish Community got its forfeiture, but only the basic procedural indemnity.
What happened?
The Flemish Disaster Fund (Department of Chancellery and Governance) launched a tender in 2019 (specifications no. 2019/VRF/01) for the appointment of experts to assess damage caused by general disasters in the Flemish Region. Henk De Four bid; his offer was declared irregular on 8 July 2019. On 6 August 2019 he filed an annulment action coupled with a request for suspension under extreme urgency. By ruling no. 245.414 of 12 September 2019 the Council of State dismissed the extreme-urgency request. The ruling was notified to De Four on 17 September 2019. From that date the fatal thirty-day deadline of article 17, § 7 of the coordinated laws on the Council of State began to run: a litigant whose suspension request has been dismissed must expressly ask for the annulment proceedings to continue. De Four did not do so. On 8 November 2019 the chief registrar sent the notification provided for in article 11/3, § 1 of the Regent's Decree — the standard procedure leading to a forfeiture ruling. De Four did not respond and did not request a hearing. The Council established the forfeiture and turned to costs. The Flemish Community, represented by attorneys Jens Debièvre and Toby De Backer, claimed an enhanced procedural indemnity of €2,800. The Council refused. Under article 67, § 2, last paragraph of the Regent's Decree it held that the indemnity should be limited to the basic amount of €700. No justification for the enhancement on file — no enhancement.
Why does this matter?
Two lessons in one ruling. First, the obvious one: a combined petition for suspension and annulment does not automatically continue if the suspension is dismissed. The fatal thirty days for requesting continuation are missed more often than bidders (and their counsel) like to admit. Second, and less well known: a contracting authority cannot simply claim the highest procedural indemnity. The basic amount is the default; an enhancement is the exception and must be motivated by special circumstances of the case. A win on procedural forfeiture rarely qualifies as a 'complex case'.
The lesson
Lost an extreme-urgency request? Diary day 28 and day 30 from notification of the dismissing ruling and file a continuation request with the chief registrar in time. As a contracting authority on the winning side: do claim the standard €700, but back up any enhanced claim with specific elements — otherwise the Council will automatically reduce it to the basic rate.
Ask yourself
As a contracting authority, is your lawyer asking for an enhanced procedural indemnity? Ask which specific complexity, scope or burden of the case justifies it. Without concrete substantiation, the basic rate applies.
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 →