Winning extreme-urgency suspension is not enough — without a follow-up annulment request the suspension is automatically lifted, even if the contested award has been withdrawn
The Council of State lifts the previously ordered suspension of VDAB's award to 3S because Alfa-Zet, having obtained the suspension, never filed an annulment action — a mandatory lifting under Article 17, §4 — although VDAB still bears the costs because it had withdrawn the contested decision itself.
What happened?
VDAB launched in 2020 a competitive procedure with negotiation for a framework agreement covering hardware, software, integration, maintenance and operational support for the reception kiosks in its job centres (specifications 2020/181). Five companies were selected: 3S, Alfa-Zet Systems, Deloitte Consulting & Advisory, Logis.P and Proximus. On 1 March 2021 VDAB awarded the framework to 3S at the unit prices in its bid. Alfa-Zet, not selected, filed for extreme-urgency suspension on 19 March 2021. By judgment no. 250.332 of 15 April 2021 the Council of State suspended the award — Alfa-Zet had won. One week later, on 22 April 2021, VDAB withdrew the contested decision. That should logically have ended the matter. But Alfa-Zet never filed a request for annulment afterwards. And Article 17, §4, third paragraph of the coordinated laws on the Council of State is categorical: in the absence of an annulment request, the Council 'is' obliged to lift the suspension. No discretion, no counter-argument possible. The case was put under deliberation on 1 December 2021 via the written procedure (Article 26, §2 of the Regent's decree), the parties did not request a public hearing, and on 27 January 2022 Alfa-Zet sent a letter saying that the contested decision had in any event been withdrawn — loosely translated: 'doesn't matter further'. On 14 February 2022, chamber president Paul Lemmens (XIIth chamber) formally pronounces the lifting. One small win for Alfa-Zet: because VDAB had withdrawn its decision — usually a sign that the original act was flawed — VDAB carries the costs: 200 euro roll fee and 20 euro contribution awarded to Alfa-Zet.
Why does this matter?
For bid managers who win an extreme-urgency suspension, this case hides a nasty surprise that lawyers sometimes downplay. The win in a suspension judgment is procedural but not definitive: without a follow-up annulment request, the suspension is temporary and automatically lifted. This is a recurring mistake especially among SMEs that pay their own legal costs and think: 'we won, done.' When the contracting authority then withdraws the decision and reconsiders — as VDAB did here — it indeed feels as if the file is closed. But formally it is not: the suspension remains an 'open file' until it is lifted. That has practical consequences when there is still uncertainty about damages, costs or the re-tender. Remember: the suspension procedure (Article 17 §4) and the annulment procedure (Article 14 §1) are legally two distinct tracks — the first deals with temporary suspension, the second with definitive annulment. Filing only the first gets you only a temporary pause. For contracting authorities the mirror lesson: if you withdraw an award after a suspension, you still bear the costs of the suspension procedure — the withdrawal de facto admits something was wrong with the original decision.
The lesson
Did you win an extreme-urgency suspension? Plan an annulment request immediately. The suspension on its own is a temporary measure that automatically falls away if you don't formally seek annulment within the deadline. Even if the contracting authority withdraws its decision and you have nothing more to win on the merits, filing the annulment request can still be useful — for example to prevent the authority from reviving the contested decision later, or to lock in cost awards.
Ask yourself
You won an extreme-urgency suspension. Open your calendar and set a reminder exactly 60 days later (from the notification of the suspension judgment): 'file annulment — otherwise suspension is lifted'. No annulment filed and the authority hasn't withdrawn? Call your lawyer today — you may already have a problem.
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 →