Debt collection in Bonheiden: fourteen months after the urgency suspension the Council lifts it — the municipality had already withdrawn and pays 700 euros
The temporary partnership of the bailiff firms Modero Antwerp and Modero Mechelen obtained on 14 September 2021 the extreme-urgency suspension of the award of Bonheiden’s debt-collection contract to Equalis, after which the municipality withdrew that award on 28 September 2021; because no annulment action followed, the Council of State was bound to lift the suspension on 29 November 2022, but placed the roll fee, the contribution and a 700-euro procedural indemnity on the municipality, which through its withdrawal remained the losing party.
What happened?
On 3 August 2021 the municipality of Bonheiden approved the bid-verification report of 28 July 2021 and awarded the services contract ‘Debt collection of outstanding receivables through a bailiff’ to Equalis. The temporary partnership of Modero Gerechtsdeurwaarders Antwerpen and Gerechtsdeurwaarderskantoor Jan Wouters (Modero Mechelen), whose bid was not chosen, applied on 20 August 2021 for suspension under extreme urgency of the award and of the implicit refusal to award to it. By judgment no. 251.465 of 14 September 2021 the Council of State ordered the suspension. Two weeks later, on 28 September 2021, the college of mayor and aldermen withdrew the contested decision; it reported this to the Council only by letter of 13 September 2022. The applicants filed no application for annulment after their urgency application. On the chamber president’s proposal of 12 September 2022 the case was dealt with without a hearing and taken under advisement on 22 November 2022. The Council found that in that situation article 17, § 4, third paragraph of the coordinated laws obliged it to lift the suspension, and did so. In view of the withdrawal it placed the costs of the urgency application — the roll fee of 400 euros, a contribution of 20 euros and the procedural indemnity of 700 euros claimed by the applicants — on the municipality. Equalis, as intervening party, bore the 150-euro roll fee for its intervention. Chamber president Paul Lemmens delivered two judgments on the same pattern that day, nos. 255.134 and 255.135.
Why does this matter?
This judgment is the Bonheiden variant of a mechanism every bidder who ever wins an urgency application must know: a suspension does not survive without an annulment action. The legislature does not want a provisional measure to linger indefinitely; whoever obtains it must follow through or lose it. In Bonheiden following through had become pointless — the municipality had withdrawn the award two weeks after the urgency judgment — so Modero deliberately forwent the annulment action. The result is a judgment that at first sight seems to go against the applicants (the suspension is lifted) but in reality vindicates them entirely: the award to Equalis is gone and the municipality pays everything, down to the procedural indemnity. The timeline is striking. The withdrawal dates from September 2021, its notification to the Council from September 2022, the judgment from November 2022. A suspended case thus stays on the roll for well over a year until the Council formally closes it, and only then does the costs order arrive. For municipalities that is a reason to report the withdrawal at once; for bidders, to claim the procedural indemnity expressly in the urgency application, because that is the amount the Council awards. That the contract concerned bailiff services shows, finally, that even modest services contracts of local authorities find their way to the Council — and that an urgency application there can lead to a withdrawal within weeks.
The lesson
For bidders: a successful urgency application forces a choice within the appeal period. If the authority has formally withdrawn the award, you may forgo the annulment action; the lifting of the suspension that follows is a formality and the costs land on the authority. If there is no withdrawal, bring the annulment action, otherwise the award revives. Always claim the procedural indemnity expressly in your urgency application — the Council awards the amount claimed, here 700 euros. For contracting authorities: a swift withdrawal after a lost urgency application, as Bonheiden did, limits the damage and lets you redo the contract, but the costs of the urgency procedure remain yours. Report the withdrawal to the Council immediately rather than waiting a year, so the case can be struck from the roll and the uncertainty for all parties ends.
Ask yourself
Do you know that your urgency suspension must be lifted if you bring no annulment action, and have you noted that time limit? Before dropping the annulment action, did you check that the authority has formally withdrawn the award and not merely announced it? Is the procedural indemnity expressly stated in your urgency application? As a contracting authority: after withdrawing a suspended award, did you inform the Council at once, and have you budgeted the costs and the procedural indemnity as the price of your change of course?
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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 →