An award decision you disagree with need not be accepted. Belgian law provides a powerful legal protection mechanism through the Council of State. The combination of the mandatory standstill period and the suspension proceedings under extreme urgency makes it possible to halt an unlawful award before the contract is concluded.
The standstill period
What is it?
After communication of the reasoned award decision to the unsuccessful tenderers, a mandatory standstill period of at least 15 days applies. During this period, the authority may not conclude the contract.
The standstill period commences on the day following the day on which the award decision was sent. When sent by fax or email: the day after sending. When sent by letter: the day after receipt (or after the expiry of the usual postal delivery period).
Purpose
The standstill gives unsuccessful tenderers time to:
- Study the reasoning.
- Possibly request additional reasoning.
- Consult a lawyer.
- Institute suspension proceedings before the Council of State.
When does standstill not apply?
There is no standstill obligation for:
- Contracts below the European threshold where no European publication is required (unless the law or specifications provide otherwise).
- Contracts awarded under a framework agreement without reopening of competition.
- Cases of compelling urgency.
The suspension procedure
Application for suspension under extreme urgency (UDN)
This is the most commonly used remedy in public procurement. The unsuccessful tenderer asks the Council of State to suspend the execution of the award decision.
The UDN procedure is fast: the hearing typically takes place within a few days to two weeks of filing the application. There is no requirement for a prior administrative appeal.
Conditions for suspension
The applicant must demonstrate three elements:
1. Extreme urgency. The risk that the conclusion of the contract will cause serious and difficult-to-repair harm. In practice, this is primarily the fact that the contract threatens to be concluded — which would render the appeal useless.
2. Serious grounds. The applicant must raise at least one ground that appears serious at first sight — a violation of procurement rules that, if proven, would lead to annulment. Common grounds:
- Violation of the principle of equal treatment or transparency.
- Inadequate reasoning of the award decision.
- Incorrect application of the award criteria.
- Non-compliance with selection criteria.
- Procedural errors (for example, no price investigation for abnormal prices).
3. Balancing of interests. The Council weighs the applicant’s interest against the public interest and the interest of the successful tenderer. If the suspension would have disproportionate consequences (for example for a critical public service), the Council may reject the application despite serious grounds.
Consequences of suspension
If the Council of State orders the suspension, the authority may not conclude the contract. The authority then has two options:
- Withdraw the award decision and take a new, correct decision.
- Continue the proceedings to the merits (annulment), with the risk of definitive annulment.
In practice, the authority usually withdraws the decision and restarts (wholly or partially) the evaluation.
The annulment procedure
Annulment appeal (on the merits)
In addition to the suspension procedure, the unsuccessful tenderer can institute an appeal for annulment. This is a merits procedure that typically takes 6 to 18 months.
The Council of State annuls the award decision if it finds that the authority violated the law — the same grounds as in suspension, but now definitively assessed.
Consequences of annulment
If the award decision is annulled after the contract has already been concluded, a complex situation arises. The annulment in principle works retroactively (ex tunc), but the authority cannot always return to the starting position. The law provides for the possibility of damages as an alternative.
Damages
An unsuccessful tenderer who can demonstrate that it should have received the contract can claim damages before the civil court. This includes:
- Lost profit. The profit the tenderer would have realised from executing the contract.
- Participation costs. The costs of preparing the tender (in exceptional cases).
The burden of proof lies with the applicant: it must demonstrate that without the unlawfulness it would have won the contract.
Practical timeline
| Moment | Action |
|---|---|
| Day 0 | Receipt of award decision |
| Day 1-5 | Analysis of reasoning, possible request for further reasoning |
| Day 5-10 | Consultation of lawyer, assessment of chances |
| Day 10-14 | Decision on appeal, preparation of application |
| Day 15 | End of standstill — application should preferably be filed before this date |
| Day 15-25 | Hearing before the Council of State (UDN) |
| Day 25-30 | Judgment (suspension or rejection) |
Tips for the tenderer
React quickly. The standstill period is short. Do not wait until day 14 to consult a lawyer — start immediately after receiving the award decision.
Always request further reasoning. Even if you do not plan to appeal, request additional information within 15 days. The extra reasoning can help you better assess your chances.
Preserve your file. Keep a copy of your tender, the procurement documents, all correspondence and the award decision. This is your evidence file.
Choose a specialised lawyer. Public procurement law is a specialism. A lawyer with experience before the Council of State knows the case law and the expectations of the auditor.