Whoever lets the auditor’s report lapse abandons the case: discontinuance after the contested LIFE DUNIAS award on the Westkust coast
An unsuccessful bidder challenged the Agency for Nature and Forests’ award of lots 1 and 2 of the works contract ‘LIFE DUNIAS Westkust 2024-2025’, but failed to file a request to continue the proceedings after the auditor’s report had proposed rejection, so that the Council of State applied the statutory presumption of discontinuance, declared the abandonment and dismissed the linked damages claim.
What happened?
On 3 February 2025, BV D. brought an action for the annulment of the decision of the Agency for Nature and Forests (ANB) of 19 November 2024 to award lots 1 and 2 of the public works contract ‘LIFE DUNIAS Westkust 2024-2025’ (reference ANB-TB-TOW-2024-135) to a third party, and additionally claimed damages by way of redress. Both parties exchanged their pleadings. First auditor-division head Ann Eylenbosch drew up a report proposing the rejection of both the action and the damages claim. That report was served on the applicant on 12 February 2026, and on 2 April 2026 the chief registrar notified it of the communication referred to in article 14quater of the Regent’s Decree of 23 August 1948. The applicant did not request to be heard and — decisively — did not file a request to continue the proceedings. Under article 21, seventh paragraph, of the coordinated laws on the Council of State, a presumption of discontinuance then applies: whoever, after a report proposing rejection or inadmissibility, files no request to continue within thirty days of service of that report is deemed to abandon the case. The Council found this presumption applicable here and declared the discontinuance of the annulment action. Because no illegality was established in the annulment action, the Council also dismissed the claim for damages by way of redress, and — applying article 70, § 1, fifth paragraph, of the Regent’s Decree — the fee and contribution for that damages claim were not due, so that the undue fee must be refunded to the applicant. The applicant was ordered to bear the costs of the annulment action: a roll fee of 200 euros, a contribution of 24 euros and a procedural indemnity of 770 euros to the Flemish Region. The judgment was delivered on 28 April 2026 by the XIVth chamber (chamber president Geert Debersaques).
Why does this matter?
This judgment recalls a simple but inexorable procedural pitfall that can derail even a well-documented procurement case. When the auditor’s report proposes rejection or inadmissibility, the applicant must, within thirty days of service, expressly request that the proceedings be continued; if it does not, the presumption of discontinuance takes effect and the Council no longer reaches the merits. The substantive criticism of the award — however strong — is then never assessed. The judgment immediately shows the consequence for the linked damages claim by way of redress: that claim rests on an illegality established by the Council, and on abandonment of the annulment action no illegality is established, so the damages are dismissed outright. The only bright spot for those who drop out is fiscal: the fee and contribution attached specifically to the damages claim are not charged and the undue amount is refunded. For the ordinary procedural costs nothing changes: the abandoning party bears the roll fee and a procedural indemnity to the opposing party.
The lesson
If you are pursuing an annulment action against an award, mark the service of the auditor’s report in red in your calendar. If that report proposes rejection or inadmissibility, you have thirty days to file a request to continue; let that period lapse and you are deemed to abandon the case, and the Council no longer reaches your pleas. So decide in good time and deliberately whether to proceed: a strong file does not help if you miss the procedural step. Do not forget that your damages claim by way of redress stands or falls with an established illegality — no ruling on the merits means no damages. If you wish to stop, weigh the costs: you do recover the fee and contribution attached to the damages claim, but you bear the roll fee and a procedural indemnity to the opposing party. If you are the contracting authority, this judgment illustrates that an unsuccessful bidder who does not press on ends the case itself.
Ask yourself
Do you know that an auditor’s report proposing rejection or inadmissibility starts the clock: thirty days to file a request to continue, on pain of a presumption of discontinuance? Do you have an internal procedure to act immediately on the service of that report? Do you realise that your claim for damages by way of redress presupposes an illegality established by the Council, and therefore falls along with the abandonment of the annulment action? And have you assessed the cost consequences — refund of the fee on the damages claim, but a roll fee and a procedural indemnity to the opposing party nonetheless?
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 →