ZIT-IDEE fails to request the continuation of its furniture-contract action in time: the Council of State records the statutory discontinuance
After the Council of State had already dismissed its application for suspension and a penalty payment, and the auditor concluded that the action should be dismissed, ZIT-IDEE NV failed to request, within the statutory time limit, the continuation of its annulment action against the rejection of lots 3, 4 and 5 of furniture contract 015/2010 of the Rixensart public social welfare centre; under article 21, sixth paragraph, of the coordinated laws, the Council therefore recorded the presumed discontinuance and ordered ZIT-IDEE to pay the costs of 350 euros.
What happened?
The public social welfare centre (CPAS) of Rixensart launched a public contract — contract 015/2010 — for the supply of various furniture. By a decision of 28 October 2010 the CPAS decided not to retain ZIT-IDEE NV’s bid for lots 3, 4 and 5. On 10 November 2010 ZIT-IDEE brought an action for annulment of that decision before the Council of State, seeking a penalty payment of 500 euros per day should the CPAS fail to award it the lots in question within fifteen days of an annulment judgment. By judgment no. 212.440 of 5 April 2011 the Council dismissed the applications for suspension and for a penalty payment. ZIT-IDEE requested the continuation of the procedure on 21 April 2011 and filed a supplementary memorial. First auditor Eric Thibaut then drew up a report concluding that the action should be dismissed. After that report had been notified to the parties, ZIT-IDEE failed to request the continuation of the procedure again within the prescribed time limit. On 29 October 2012 the auditor drew up a note asking that the procedure of article 14quater of the Regent’s Decree of 23 August 1948 be set in motion. By a letter notified on 13 November 2012, the registry informed ZIT-IDEE that the chamber would record the discontinuance unless it requested, within fifteen days, to be heard. ZIT-IDEE did not react. Article 21, sixth paragraph, of the coordinated laws on the Council of State provides that there is a presumption of discontinuance where the applicant does not introduce a request for continuation by registered mail within thirty days of the notification of an auditor’s report concluding that the action should be dismissed. Since ZIT-IDEE had neither requested continuation in time nor asked to be heard, it was deemed to discontinue its action by operation of law. The Council recorded the discontinuance and placed the costs, assessed at 350 euros, on ZIT-IDEE.
Why does this matter?
This judgment recalls a trap that has nothing to do with the merits of the case but is just as decisive: the time limit to request the continuation of the procedure. When the auditor concludes in the report that the action should be dismissed, the applicant must, within thirty days of notification, expressly state by registered mail that it wishes to continue the procedure. If it does not, a statutory presumption of discontinuance takes effect and the case ends without a ruling on the merits. That ZIT-IDEE had earlier — after the negative suspension judgment — requested continuation did not help: the time limit starts running afresh with each auditor’s report concluding that the action should be dismissed. A negative auditor’s report is moreover not an endpoint: the applicant may continue the procedure and still try to convince the Council, but only if it complies with the formality in time. The lesson is one of procedural discipline: whether a case is strong or weak is irrelevant once the time limit lapses unused.
The lesson
Follow every auditor’s report closely. If the auditor concludes that your action should be dismissed, you have thirty days from notification to expressly request, by registered mail, the continuation of the procedure; if you let that time limit lapse, the Council of State records a statutory discontinuance and your case ends without a ruling on the merits. Do not count on an earlier request for continuation — for example after a negative suspension judgment — to release you from that obligation: the time limit starts again with each report concluding that the action should be dismissed. If you then receive a letter from the registry announcing the recording of the discontinuance, react within the set time limit and ask to be heard. And bear in mind that a discontinuance too can leave you with the costs — here 350 euros.
Ask yourself
Do you know that an auditor’s report concluding that your action should be dismissed opens a thirty-day time limit to request the continuation of the procedure by registered mail? Do you realise that you must comply with that formality again, even if you already requested continuation earlier after a negative suspension judgment? Do you have a system to monitor the notification of every auditor’s report and the associated time limit? And do you know that, if you do not react to the registry’s announcement of the discontinuance, you lose the case without a ruling on the merits and still bear the 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 →