A suspension that evaporates: L.I.F.E. filed no annulment action after the urgent suspension of Sogent’s decision and now pays 920 euros to the other side
After the Council of State had, by judgment no. 252.352 of 8 December 2021 on L.I.F.E.’s application, suspended Sogent’s decision to reject its bid for the Oude Dokken – Dok Zuid project as irregular, L.I.F.E. failed to bring an annulment action within the time limit; the Council was therefore obliged under article 17, § 4, third paragraph of the coordinated laws to lift the suspension, and placed the roll fee, the contribution and a procedural indemnity of 700 euros on the bidder that had earlier won the suspension.
What happened?
The Autonomous Municipal Company for Urban Development of Ghent (Sogent) organised public works contract 2020/13 ‘Project Oude Dokken, Dok Zuid – Realisation of a composite project with an educational campus and collective student housing’, with Artevelde University of Applied Sciences as future user of the campus. By decision of 27 October 2021 Sogent rejected the bid of Living in Funky Environments (L.I.F.E.) as irregular. On 12 November 2021 L.I.F.E. applied to the Council of State for suspension under extreme urgency, successfully: by judgment no. 252.352 of 8 December 2021 the Council ordered the suspension of the execution of the rejection decision. The Artevelde University of Applied Sciences intervened in the proceedings. There, however, L.I.F.E.’s story ended. After the suspension it filed no application for annulment of the contested decision. Article 17, § 4, third paragraph of the coordinated laws on the Council of State leaves the Council no choice in that case: it is ‘obliged to lift the suspension ordered’. By order of 12 September 2022 the president of the XIIth chamber proposed to the parties that the case be dealt with without a public hearing, in accordance with article 26, § 2 of the Regent’s Decree of 23 August 1948; none of the parties requested a hearing. The debate was closed and the case taken under advisement on 22 November 2022. In its judgment of 29 November 2022 the Council lifted the suspension of 8 December 2021. On costs it held that ‘in the circumstances’ it was appropriate to place the roll fee of the urgent application and the procedural indemnity of 700 euros requested by Sogent on L.I.F.E.: in total a roll fee of 200 euros, a contribution of 20 euros and 700 euros procedural indemnity to Sogent. As intervening party, Artevelde bore the 150-euro roll fee of its own intervention.
Why does this matter?
The judgment contains no substantive consideration of the contract or of why L.I.F.E.’s bid was rejected, and precisely for that reason it is instructive. A suspension under extreme urgency is a provisional measure. It freezes the contested decision but does not annul it. Whoever does nothing further after the suspension — no annulment action within the sixty-day period — sees the suspension lapse by operation of law, and the Council must record that without any discretion. The practical consequence is twofold. First, the suspended decision revives: Sogent could simply maintain the rejection of L.I.F.E. Second, the burden of costs reverses. At the suspension stage L.I.F.E. was the winning party; at the lifting stage it becomes the party bearing the costs and the other side’s procedural indemnity, even though the Council never ruled on the merits that its pleas were unfounded. For bidders who reach a settlement with the authority after winning a suspension — or who see the contract pass them by in the meantime — that is a cost item to be consciously factored in. The choice is not ‘win the suspension and wait’, but ‘win the suspension and then either press on with an annulment action, or accept the lifting and the accompanying bill’. The judgment fits a series of decisions in which the Council places the costs of a lifted suspension or a withdrawal on the applicant, and shows that the procedural indemnity is then set at the basic amount of 700 euros when the other side asks for it.
The lesson
For bidders: an urgent suspension is an intermediate step, not an end point. Decide before the annulment period expires what you will do. If you bring an annulment action, the suspension continues until the final judgment; if you do not, it is lifted and you pay the other side’s costs. If you are meanwhile negotiating a solution with the authority, settle the costs question too — or file an application for annulment to protect your position until the agreement is finalised. For contracting authorities: if a bidder brings no annulment action after a suspension, you need do nothing but await the lifting; do expressly request the procedural indemnity, since the Council awards it on request. For intervening parties such as Artevelde: intervention costs 150 euros in roll fee, and that amount remains at your own expense even with a favourable outcome.
Ask yourself
Do you know that an urgent suspension is automatically lifted if you do not bring an annulment action within the time limit? Have you scheduled that period in your case management, so that the decision whether or not to press on is taken consciously? Do you realise that the party that won the suspension bears the costs and the procedural indemnity upon lifting, without any ruling on the merits of its pleas? As an authority: did you request the procedural indemnity in your note? And as an intervening party: have you factored in the 150-euro roll fee as a cost you bear yourself?
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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 →