Suspension request rendered moot after withdrawal of fire detection maintenance award — intervening party's suspension request never enrolled due to failure to regularise
The Council of State finds there is no longer any reason to rule on the extreme urgency suspension request by SA Alarmes Coquelet against the award of the fire detection maintenance contract to CGMI-Protect, as the respondent (SCRL Toit & Moi) withdrew the contested decision of 13 October 2023 — the withdrawal is definitive because CGMI-Protect's suspension request against the withdrawal decision was never enrolled due to failure to regularise within the Article 3bis deadline, and no annulment appeal was filed.
What happened?
In March 2023, SCRL Toit & Moi, a social housing company in the Mons region, launched a services contract for maintenance of fire detection installations. Four tenderers submitted offers. On 13 October 2023, the contract was awarded to CGMI-Protect for €451,549. Alarmes Coquelet and Dumay-Mior each filed extreme urgency suspension requests. On 15 December 2023, Toit & Moi took two decisions: withdrawing the 13 October award and awarding the contract to Alarmes Coquelet. Dumay-Mior then challenged this new award; the Council suspended it by ruling no. 258,830 of 15 February 2024. On 9 April 2024, Toit & Moi withdrew the 15 December decision and adopted yet another award to Alarmes Coquelet. As for Alarmes Coquelet's original suspension request against the 13 October decision: CGMI-Protect had filed a suspension request against the withdrawal on 27 December 2023, but this request was never enrolled by the registry. CGMI-Protect was informed of missing elements (domicile election in Belgium, numbered inventory of documents) and given 15 days to regularise under Article 3bis. The request was never fully regularised, and no annulment appeal was filed against the withdrawal. The withdrawal was therefore definitive, rendering Alarmes Coquelet's original appeal moot. The Council ordered costs against the respondent — the withdrawal constituting a surrogate of contentious annulment — with a procedural indemnity of €770 to Alarmes Coquelet.
Why does this matter?
This ruling illustrates how withdrawal of the contested decision deprives the suspension request of its object, while the respondent is still treated as the losing party for costs purposes. It also highlights the fatal consequences of failing to regularise a request: CGMI-Protect, the initial award beneficiary, could not effectively challenge the withdrawal because its suspension request was never enrolled due to regularisation failure, and no annulment appeal was filed. This failure made the withdrawal definitive.
The lesson
Two practical lessons. First, for the initial award beneficiary: if the contracting authority withdraws the decision in your favour, do not limit yourself to a suspension request — also file an annulment appeal. Ensure your request is complete and compliant with Article 3bis requirements: domicile election, numbered document inventory, and all required elements. Non-enrolment due to regularisation failure is irrecoverable. Second, for the contracting authority: withdrawing a contested decision ends the dispute but you will be treated as the losing party for costs — plan accordingly.
Ask yourself
As beneficiary of a contested award: if the authority withdraws the decision in my favour, have I filed an annulment appeal against the withdrawal and not just a suspension request? Is my request complete and regularised within deadlines? As contracting authority: if I withdraw a contested decision, am I aware I will be treated as the losing party for costs?
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 →