Suspension of geophysical soil survey framework agreement award lifted after failure to file annulment appeal – Heritage Agency had already withdrawn its decision
The Council of State lifted the previously ordered suspension (ruling no. 258,676) of the award of a framework agreement for geophysical soil surveys to Ghent University, because the temporary partnership Terra Engineering & Consultancy – 360 Survey had failed to file an annulment appeal. The Heritage Agency had meanwhile already withdrawn the contested award decision.
What happened?
The Heritage Agency (an internally autonomous agency of the Flemish Region) decided on 15 December 2023 to declare the tender of the temporary partnership Terra Engineering & Consultancy – 360 Survey for the framework agreement for geophysical soil surveys at various sites in Flanders (2023-2027) irregular and to award the contract to Ghent University. The temporary partnership obtained suspension under the extreme urgency procedure by ruling no. 258,676 of 2 February 2024. However, the partnership then failed to file an annulment application. The Heritage Agency withdrew the contested award decision on 5 February 2024 — three days after the suspension ruling. The Council was legally required under Article 17, § 4, third paragraph of the coordinated laws to lift the suspension. Costs were charged to the Flemish Region in light of the withdrawal of the contested decision.
Why does this matter?
This ruling follows the same pattern as ruling no. 259,329 (Hydroko/AGSO Knokke-Heist): a suspension under the extreme urgency procedure is lifted because the applicant fails to file a timely annulment appeal, while the contracting authority has meanwhile withdrawn its decision. The cost allocation here is reversed, however: because the defending party withdrew its decision, it bears the costs — not the applicant.
The lesson
After obtaining a suspension under the extreme urgency procedure, you must always file a timely annulment appeal, otherwise the suspension is lifted ex officio. If the contracting authority withdraws its decision, note the cost implication: the withdrawal is treated as an acknowledgment of the irregularity, meaning costs fall on the authority.
Ask yourself
If I have obtained a suspension and the contracting authority withdraws its decision, have I still planned my annulment appeal — or do I assume the case is closed?
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 →