One suspension, several winners: how the Council of State safeguards a second rejected bidder’s action against the SOFICO award through a sine die adjournment
SOFICO rejected four tenders — including Sogeplant’s — as irregular and awarded its 3,177,961.58-euro contract to Krinkels; after a co-rejected bidder had already obtained the suspension of that same decision under extreme urgency in a parallel judgment (no. 255.712), the Council of State did not let Sogeplant’s action fall away as devoid of object, but adjourned it sine die precisely to safeguard Sogeplant’s own legal protection should that suspension later lapse.
What happened?
On 16 December 2022 the Walloon Company for Complementary Financing of Infrastructure (SOFICO) decided to reject the tenders of A2, Sogeplant, Eurogreen-Sotraplant and Artbel as irregular, to regard Krinkels’ tender as regular, and to award the contract to Krinkels as the economically most advantageous regular tender, at 3,177,961.58 euros excluding VAT. On 3 January 2023 Sogeplant sought the suspension of that decision under extreme urgency; the case was set for the hearing of 19 January 2023. On 12 January 2023 Krinkels, as beneficiary of the award, sought leave to intervene; the Council admitted the intervention for its sufficient interest. The heart of the judgment, however, lies in the effect of a parallel case. By judgment no. 255.712 of 8 February 2023 — delivered the same day — the Council ordered the suspension of the execution of that very same contested decision, on the application of another rejected bidder. Through the effects of that judgment, Sogeplant too benefits from the suspension thus ordered: the contested award cannot be executed for the time being. Yet the Council decided not to dispose of Sogeplant’s action, but to adjourn it sine die. It pointed out that legal certainty must remain guaranteed, whatever the fate of the suspension ordered in judgment no. 255.712. It cannot be excluded that the applicant who obtained the suspension in that judgment fails to bring an annulment action within the time limit set, or that such an action — even if brought in time — fails for any reason. In that case a later judgment lifting the suspension or dismissing the annulment action would allow SOFICO to execute the contested decision after all. To avoid impairing Sogeplant’s legal protection in that hypothesis, the Council adjourned the case sine die, so that Sogeplant can still have its own action fully heard later. Finally, at the parties’ uncontested request, the Council maintained the confidentiality of items A to D of the applicant’s file and A to F of the administrative file, including the intervening party’s tender. The Council admitted Krinkels’ intervention, adjourned the case sine die, ordered the immediate execution of the judgment and reserved the costs.
Why does this matter?
When a single public contract is challenged simultaneously by several rejected bidders, a practical question arises: what happens to the parallel actions once one of them obtains the suspension? There is a temptation to treat those other actions as ‘devoid of object’ — the award is, after all, already halted. This judgment shows why that would be too hasty. The suspension one bidder obtained is not immovable: if that bidder fails to take the next procedural step (no annulment action, or a failing one), the suspension may lapse and the risk revives that the authority executes the contested award. Each rejected bidder therefore retains an own, independent interest in a ruling on its own action. The Council resolves this with a sine die adjournment: the case is neither decided nor closed, so the applicant can revive it later if the protection through the parallel judgment falls away. The judgment thus illustrates a subtle piece of case management: how the Council keeps the legal protection of several competitors alive at once without needless duplication. For anyone bidding for large contracts that is no detail: it determines whether your action is genuinely preserved or quietly evaporates in the shadow of another’s victory.
The lesson
If, as a rejected bidder, you are not the only one challenging the award, do not assume that the suspension a competitor obtains makes your own action superfluous. That suspension protects you for now, but it stands or falls with that competitor’s further conduct of the case: if it lets the annulment action lapse or loses it, the authority may execute the award after all. So keep your own action alive and, if need be, ask — as happened here — that the Council adjourn your case sine die rather than declare it devoid of object; that preserves your right to revive it later. Also make sure to bring your own annulment action in time and not rely solely on the suspension. As an authority, the lesson is that a suspension obtained by one bidder does not make the other actions disappear: expect each rejected bidder to keep its own procedural position until all challenges are finally resolved.
Ask yourself
Are you the only one challenging the award, or are there parallel actions by other rejected bidders that affect your position? Do you realise that a suspension obtained by a competitor protects you only provisionally, and lapses if that competitor does not pursue or loses its annulment action? Have you brought your own annulment action in time, rather than merely relying on someone else’s suspension? To secure your legal protection, have you asked for your case to be adjourned sine die instead of declared devoid of object?
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 →