Whoever obtains a suspension but then files no annulment action loses that protection automatically — and owes the other side's procedural indemnity
The Council of State lifts the suspension earlier obtained by Jardiparc: Devillers did not file an annulment petition within the statutory deadline, so the law automatically removes the suspension — and the respondent, now regarded as the winning party, collects the €770 procedural indemnity.
What happened?
RESA — the Liège electricity and gas distributor — tendered a public contract for maintenance of green zones around 70/15 kV substations and distribution cabins. The contract was split into four geographic lots. On 3 April 2024 RESA decided to stop the tender procedure under Articles 85 and 153 of the 17 June 2016 Act and redraft the specifications for a later re-tender. SRL Devillers, a past bidder, filed an extreme-urgency suspension request on 29 April 2024 against that stop-decision. In the meantime SRL Jardiparc — a fellow bidder — filed an intervention request. On 10 June 2024 the Council of State, in judgment 260,073, admitted Jardiparc's intervention and suspended the contested stop-decision on the grounds raised by Jardiparc and Devillers. Then silence. The law provides in Article 17 §4 paragraph 3 of the coordinated laws on the Council of State: 'the suspension and interim measures ordered before the filing of an annulment action are immediately lifted if it appears that no annulment action invoking the grounds that justified them has been filed within the time allowed by the rules of procedure'. Devillers did not file an annulment petition within that time. At the hearing of 10 October 2024 the chamber asked whether the contested stop-decision had meanwhile been withdrawn (which would render the case moot) — but neither Devillers nor RESA could confirm. Only Jardiparc declared that no withdrawal had been notified to her. In those circumstances the Council had to find that the contested act still exists and could have been challenged — but can no longer be. The suspension is therefore lifted. Because Devillers filed no annulment action, RESA is regarded as the winning party. Consequence: Devillers pays a €770 procedural indemnity to RESA plus the €200 roll fee and €24 contribution. Jardiparc bears her own €150 intervention fee.
Why does this matter?
This is a small but painful lesson for bidders. A suspension order feels like victory. In reality it is a temporary measure that only holds if converted within the statutory deadline into an annulment procedure. If you fail, you lose the suspension automatically and collect a procedural indemnity at the closing hearing. Bid managers who obtain a suspension and then negotiate with the authority should always do so with the annulment petition filed — not freestanding. If you reach agreement, you voluntarily discontinue the annulment. If it falls apart, your action still stands. Conversely, an authority that observes the plaintiff files no annulment petition can return to the original decision without further action — or start a new procedure — because the suspension is ipso facto lifted.
The lesson
If you obtain a suspension in an extreme-urgency procedure (or if an intervener does so for you), immediately schedule three things: (1) calculate the statutory deadline for the annulment petition; (2) schedule a strategy review in week 2 to decide whether to negotiate or litigate; (3) file your annulment petition within the deadline in any case — even while negotiating — unless you are certain the authority has formally withdrawn the contested decision and you hold that document. A suspension without annulment is an alarm that self-silences in a few months, and that silence usually costs you a €770 procedural indemnity.
Ask yourself
Have you obtained a suspension in an extreme-urgency procedure in the last six months? If so: have you filed an annulment petition within the deadline? Have you confirmed that the contested decision has officially been withdrawn (document in hand), or are you at risk that Article 17 §4 paragraph 3 will automatically lift your suspension?
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 →