When a competitor already secures the suspension: the Council of State parks A2’s extreme-urgency application sine die so that its judicial protection does not depend on Sogeplant’s litigation choices
On the same day it suspended the award of the Marcinelle motorway-maintenance contract to Krinkels at Sogeplant’s request (judgment no. 255.119), the Council of State adjourned A2’s parallel extreme-urgency application against the same decision sine die: A2 already benefits from the suspension, but would lose its judicial protection if Sogeplant failed to bring or lost an annulment action and SOFICO then executed the award after all.
What happened?
On 30 September 2022 SOFICO awarded the services contract for sweeping, clearing, cleaning and green-space maintenance in the Marcinelle motorway district (specifications Sofico-21-1036) to Krinkels, after an earlier award that the Council of State had suspended on 12 April 2022 and that SOFICO had withdrawn. Two rejected bidders challenged the new decision: A2 with a single application for suspension under extreme urgency and annulment, filed on 21 October 2022, and Sogeplant with an extreme-urgency application of 25 October 2022. Both cases were heard on 10 November 2022; Krinkels applied to intervene in both, which the Council granted as it was the beneficiary of the award. In Sogeplant’s case the Council held, by judgment no. 255.119, that the first branch of the plea was serious — the reasoning for rejecting the bid for abnormal prices on non-negligible items did not rule out a misapplication of article 36, § 3, 1° of the Royal Decree of 18 April 2017 — and suspended the award decision. In A2’s case the Council drew the consequences. By virtue of that judgment A2 already benefits from the suspension ordered, so a second suspension of the same decision would add nothing at that point. But the Council wanted to guarantee legal certainty ‘whatever the fate of the suspension pronounced by that judgment’: it cannot be excluded that Sogeplant fails to bring an annulment action within the time limit, or that such an action fails for whatever reason. In that event a judgment lifting the suspension or dismissing the annulment action would allow SOFICO to execute the award — precisely the decision whose suspension A2 sought in its own case. To avoid impairing A2’s judicial protection, the Council adjourned its case sine die rather than declaring it without object or dismissing it. It ordered immediate execution of the judgment, kept A2’s document 5 and documents A to F of the administrative file (including Krinkels’s bid) confidential at this stage and reserved the costs.
Why does this matter?
The judgment is short, but it settles a situation that regularly arises in large contracts: several rejected bidders challenge the same award, and one of them obtains the suspension. What happens to the others? The Council could have declared A2’s application without object — the decision is already suspended — or dismissed it for lack of a current interest. It does neither, and the reason is instructive. A suspension under extreme urgency is provisional: it lapses if the applicant does not bring an annulment action or if that action fails. A2 would then be left empty-handed despite having applied in time and in its own right. By adjourning sine die, the Council keeps A2’s application alive and can reopen it whenever necessary. For bidders this means that an application of your own makes sense even when a competitor is ahead of you: you ride on its suspension, but you keep your own safety net. For contracting authorities it is a warning that a suspended award is not ‘freed’ as soon as one applicant drops out — every other applicant whose case was parked can reactivate it. The rest of the saga (judgments nos. 255.712, 257.136 and 258.579) shows that A2 did indeed need its own procedure.
The lesson
For bidders: do not be deterred by the fact that a competitor is already challenging the same award. File your own extreme-urgency application in time — the Council will not dismiss it as superfluous but, if need be, adjourn it sine die so that you keep your judicial protection should the competitor fail to pursue or lose its annulment action. After such an adjournment, follow the other case closely and request reopening as soon as the suspension threatens to lapse. For contracting authorities: a suspension pronounced at one bidder’s request in effect protects all applicants. Do not count on executing the award as soon as that one applicant drops out; check which other applications have been adjourned sine die and repair the procedure thoroughly rather than waiting for a procedural escape.
Ask yourself
As a rejected bidder, have you filed your own application even though a competitor is already challenging the same award? Do you know that an extreme-urgency suspension lapses if the applicant who obtained it does not bring or loses an annulment action — and that your own adjourned case is then your safety net? Are you following the parallel procedure so that you can request reopening in time? As an authority: do you know which applications against your award have been adjourned sine die before you execute the decision at the end of one procedure?
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 →