Silence after the auditor's report means consent: Botis loses its action against the timber contract of Nature and Forests without a judgment on the merits
Botis had challenged four decisions surrounding the award of the accreditation secretariat for timber buyers and operators to Landmax (234,861 euros incl. VAT), up to and including the selection and award criteria of the specifications — but when the auditor's report proposed dismissal and Botis did not request continuation within thirty days, the Council of State could only record the discontinuance of the proceedings.
What happened?
In 2011 the Agency for Nature and Forests of the Flemish Region tendered a service contract for 'Running the accreditation secretariat under the accreditation scheme for buyers and operators of timber' (specifications ANB/BH-PB/PROD/2011/01). Botis learned on 22 November 2011 that its tender had not been selected, and in early January 2012 that the contract had been awarded to Landmax for 234,861 euros including VAT. On 2 February 2012 Botis went to battle on a broad front: its annulment action targeted the non-selection, the refusal to award to itself, the award to Landmax and — notably — the prior decision fixing the specifications, in particular the qualitative selection and award criteria. Landmax intervened; memoranda were exchanged. Then came the turning point: first auditor Jos Stevens proposed in his report that the action be dismissed. That report was notified to Botis on 24 October 2012, followed by the registry's formal notice of 10 December 2012 (article 14quater of the Regent's Decree). From that notification ran the thirty-day period within which Botis had to request the continuation of the proceedings; failing such a request, article 21, sixth paragraph of the coordinated laws establishes a legal presumption of discontinuance. Botis filed nothing and did not ask to be heard either. On 28 February 2013 the Council of State could therefore only record the discontinuance: not a word on the pleas, no ruling on the specifications or the award. Botis bears the costs of the action (175 euros), Landmax the costs of its own intervention (125 euros).
Why does this matter?
This judgment is not about procurement law in the narrow sense, but about the procedural trap in which a procurement action can end — and that trap still exists today. The auditor's report is often the pivotal moment in annulment proceedings: if the auditor proposes dismissal, the applicant must expressly request continuation within thirty days, or be deemed to have discontinued. The legislator built in that mechanism deliberately, to clear away dead files: whoever rates his chances low after a negative report can let the case quietly expire. Hence the double reading of this judgment. To the outside world Botis simply seems to have forgotten to react; it may just as well have been a deliberate cost-benefit assessment — litigating on after a negative auditor's opinion rarely succeeds, and stopping limited the damage to 175 euros. The mirror image also exists, three judgment numbers further in the same roll: in case no. 222.665 it was not the bidder but the contracting authority (the city of Ghent) that failed to request continuation after a suspension judgment, resulting in the automatic annulment of the award. Both forfeiture rules together make one thing clear: in litigation before the Council of State, whoever stays silent also decides — just not in his own favour.
The lesson
For bidders with a pending action: diarise the notification of the auditor's report as a hard deadline. If the auditor proposes dismissal, you have thirty days to choose: expressly request continuation and fight on the merits, or consciously let the case expire. Make that choice actively and document it — a forgotten deadline and a strategic exit look identical in the court roll, but only the second is a decision. Bear in mind too that a broadly framed action (up to and including the specifications) becomes worthless once the period expires: the effort of the petition only pays if you see the proceedings through. For contracting authorities and beneficiaries: the presumption of discontinuance is a silent ally — after a favourable auditor's report, monitor the period, because if the applicant does not react, the file ends without any risk of a judgment on the merits. As intervening party, know that your own intervention costs (here 125 euros) remain at your charge.
Ask yourself
In your pending proceedings, do you monitor the thirty-day period that starts running upon notification of an auditor's report proposing dismissal? After such a report, do you decide consciously — on the basis of a cost-benefit analysis and your counsel's advice — whether to request continuation, rather than letting the period lapse silently? And do you know that the same inaction on the other side of the bar (an authority failing to request continuation after a suspension) leads to the automatic annulment of the award?
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 →