Signing a contract before the supervisory deadline expires: the risk that your decision still gets annulled is on you
The Council of State rejects the suspension claim of BEP against the Walloon minister's annulment of its temporary staffing contract because BEP itself signed the contract with Randstad before the supervisory deadline had expired — the alleged harms therefore do not flow directly from the challenged annulment, but from their own choice to take the risk.
What happened?
The intercommunals BEP Environnement and BEP (Bureau économique de la province de Namur) jointly launched a European open procedure for a joint contract 'mise à disposition de personnel intérimaire' in three lots: workers, students, and employees. Four staffing agencies submitted offers: Adecco, Randstad, Manpower and Daoust. On 18 October 2023 BEP Environnement awarded all three lots to Randstad Belgium. On the same day the decision was forwarded to the Walloon Minister of Housing, Local Authorities and the City under the tutelle générale d'annulation avec communication obligatoire. The Walloon Government acknowledged receipt on 19 October and set the supervisory deadline at 20 November 2023 (extendable by 15 days). On 19 October BEP notified Randstad of the award, mentioning the 15-day standstill period under article 11 of the Act of 17 June 2013. On 7 November — past the standstill, but well before the end of the tutelle — BEP signed the contract with Randstad ('thereby concluding the marché'). On 20 November the Walloon Minister extended his supervisory deadline to 5 December 2023. On 5 December he then annulled both the deliberation of 23 August 2023 (approval of the specifications) and the award decision of 18 October 2023. Reasons: among others, insufficient delimitation in the specifications of the legally permitted cases for the use of temporary staff. On 2 February 2024 BEP applied to the Council of State for suspension and annulment. The Council examines the urgency. The harms alleged by BEP — the loss of the 'enforceable title' for their contract, the risk that the financial controllers would not validate expenditures, the risk that the supervisory authority would not approve the annual accounts, possible challenges from third parties — are examined one by one. The core finding: BEP signed the contract on 7 November, before the end of the supervisory deadline (20 November, later extended to 5 December). In doing so they consciously took the risk that the award decision might still be annulled. The harms they now invoke therefore do not flow directly from the challenged annulment, but from their own choice to sign the contract before the end of the tutelle. The required causal link between the challenged act and the alleged harm is not established. BEP further argued that the tutelle générale d'annulation has no suspensive effect (correct) and that they would have been in the same situation had they waited (incorrect: had they waited, they simply could not have signed, and the harms now invoked would not have occurred). Moreover: the annulled decisions are 'detachable acts' — the ongoing contract itself is not annulled, so the service delivery can continue; the alleged threat to public service is therefore largely hypothetical. The risk that controllers or supervision would contest expenditures is also hypothetical and, if realised, would not be sufficiently grave. The urgency condition is not met. Application rejected.
Why does this matter?
For intercommunals, municipalities and other local authorities in Wallonia (and, more broadly, for every contracting authority subject to administrative supervision) this judgment is a sharp reminder. The tutelle générale d'annulation does indeed have no suspensive effect — you can legally proceed with execution. But: if you sign the contract before the end of the supervisory deadline, you take the risk that your title will fall retroactively. And the causal link between that risky choice and the harms you later invoke to obtain a suspension before the Council of State simply does not exist. In short: wait for the end of the supervisory deadline before you sign. The 15-day standstill period of article 11 of the Act of 17 June 2013 is your floor for bidders — not for the supervisor. Those are two different clocks and you must respect both. For bidders the message is: check whether your contracting authority is subject to supervision, and if so, when that deadline expires — only then is the contract legally stable.
The lesson
If, as a contracting authority, you are subject to administrative supervision (such as intercommunals and municipalities in Wallonia under art. L3122-1 et seq. of the Code de la démocratie locale): never sign the contract before the end of the supervisory deadline, even if there is no suspensive effect. The 15-day standstill period for bidders runs in parallel with the tutelle deadline, not in place of it. If you sign despite this before the tutelle deadline, you bear the consequences yourself — the Council of State will not accept urgency that stems from your own risky choice.
Ask yourself
Is your contracting authority subject to administrative supervision (tutelle générale d'annulation, tutelle d'approbation)? When does that supervisory deadline expire? Do you intend to sign the contract before or after that moment? If you sign before: know that any resulting annulment is entirely your risk and will not justify an urgency claim before the Council of State.
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 →