Winning a suspension isn't enough: if you don't bid in the replacement tender, you lose your standing — and you pay the costs
Five years after the Council of State suspended the award of the 'Silver Tower' lease to Ghelamco, the Council declares Fedimmo's annulment action inadmissible because Fedimmo (WTC IV) did not participate in the new procurement procedure launched by the Brussels Region in 2019, nor did it challenge the new specifications or the new award.
What happened?
The Brussels-Capital Region wanted to bring all its administration into one emblematic building. After a 2012 competitive dialogue was abandoned in 2015, the Region launched a real estate prospection call (API) in May 2018 for 38,000 m². Ten manifestations of interest, including Fedimmo (WTC IV), Befimmo (Quatuor), and Ghelamco (Silver Tower). On 6 September 2018, the Region awarded an 18-year firm lease to Ghelamco. Fedimmo first lost a UDN in July 2018 (the API was held not to be a public contract prima facie) but won a UDN on 23 October 2018 (Silver Tower award suspended; recategorized as public works contract). The Region pivoted: on 21 February 2019 it launched a new procurement, formally as a public works contract (open procedure, price-only, with six minimum requirements that effectively only Silver Tower could meet). Fedimmo did not participate, did not challenge the new specifications, did not challenge the new award. Ghelamco won, executed the contract, and the Region moved in November 2020. In November 2023, the Council declared Fedimmo's original annulment action inadmissible: under both article 14 of the 17 June 2013 act and article 19 of the coordinated Council of State acts, Fedimmo's passivity contradicted its claim to be an operator with interest in the original contract. Implicit retraction argument rejected (the new specifications expressly stated the original decision was not retracted). Suspension lifted, action rejected, Fedimmo ordered to pay 1,140 EUR in costs.
Why does this matter?
Winning a suspension does not give you a passive 'wait and see' license. When a contracting authority launches a new procedure to satisfy the same need, you must either bid or challenge that new procedure — otherwise you lose your interest in the original action and pay the winning party's costs. Authorities can effectively use a replacement tender to reach the same outcome with criteria tailored to one bidder; failure to challenge those criteria is fatal.
The lesson
If you win a suspension and the authority launches a new procedure: either bid in it or challenge it within the deadlines. Doing neither will be treated as proof you never had a real vocation to obtain the contract — and you'll lose your original action plus pay procedure costs. A suspension gives you time to reposition; it is not a victory in itself.
Ask yourself
Did you win a suspension against an award, and did the authority then launch a new procedure for the same need? Did you either submit an offer or challenge the new specifications/award within the deadline? If not, your original annulment action is likely worthless — consider withdrawing it before a procedure cost order is issued.
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 →