Losing the suspension AND forgetting to pursue the annulment: Newin pays 992 euros to the Province of Luxembourg for work not done
SA Newin loses its suspension against the award of the 2021-2025 ICT connectivity framework to Orange Belgium, forgets to file a 'request to pursue' within 30 days, and sees its annulment action automatically converted into a presumed discontinuance with 992 euros in costs.
What happened?
On 28 April 2022 the executive of the Province of Luxembourg awarded Lots 1 and 2 of a large ICT connectivity framework to Orange Belgium. It was an accord-cadre / stock framework: connectivity services available not only to the Province but also to other 'interested contracting authorities' (municipalities, intermunicipals, public welfare centres) across the Luxembourg territory for 2021-2025. A structural, four-year contract. SA Newin (Waterloo) filed on 12 May 2022 both a suspension and an annulment action. Ruling 254.267 of 11 July 2022 dismissed the suspension. The critical clock then started running. Article 17, § 7 of the coordinated laws on the Council of State provides that, when a suspension is dismissed, a legal presumption of discontinuance arises unless the applicant files a 'request to pursue the proceedings' within 30 days of notification of the suspension ruling. Newin did not file. On 3 October 2022 the chief auditor Christian Amelynck issued a note requesting the article 11/3 procedure. On 5 October 2022 the registry announced that the chamber would pronounce the discontinuance unless Newin requested a hearing within 15 days. No such request came. On 25 January 2023 presiding judge Florence Piret (VIth chamber) pronounced the discontinuance. Costs: 200 euros filing fee + 22 euros contribution + 770 euros procedural indemnity (the new indexed basic amount since 9 July 2022 after the 22 June 2022 ministerial decree) = 992 euros. Orange Belgium (the 'third-party beneficiary') does not appear substantively in the ruling — no intervention requested — but the framework therefore continues unchanged for the entire 2021-2025 period.
Why does this matter?
This is the mirror of the 'successful suspension, forgotten annulment' scenario (see ruling 256437): there the winner loses its suspension; here the loser loses its annulment file. In both cases article 17 plays a silent but fatal role. Concretely: once the Council dismisses your suspension and you do nothing further, your annulment action ends within 30 days in a presumed discontinuance. That is particularly painful in procurement because the underlying contract is often, as here, four years long: you not only lost this award, you closed your only legal channel to challenge the entire 2021-2025 framework. For many bidders this is an unforeseen phenomenon — their counsel focuses on the urgency procedure, and when that is dismissed in a short ruling the emotional response is often 'give up'. But giving up has to take a legal form, or the Council still bills you 992 euros.
The lesson
When your extreme-urgency or suspension action is dismissed: decide within two weeks whether you really want to pursue the annulment. If yes, file a 'request to pursue' before day 30 (after notification) — a simple letter, through your counsel. If no, file an express voluntary discontinuance — cheaper than awaiting the presumed one, because you can negotiate the indemnity with the opposing party. For authorities: if the applicant falls silent after your successful note, wait 30 days and activate the article 11/3 procedure via the auditor — you will get your 770 euros.
Ask yourself
Have you lost a suspension at the Council in the past months and thought 'that's that'? Check: (a) did you file a request to pursue within 30 days, (b) if not, have you proactively discontinued, and (c) have you contacted the opposing party about settling the indemnity before the presumed discontinuance kicks in?
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 →