Home-delivered meals awarded to the Laakdal welfare centre: after the extreme-urgency suspension, Scherpenheuvel-Zichem withdraws the award and pays the costs
After the Council of State, at the request of caterer Hoeve Gervan, suspended under the extreme-urgency procedure the award of the meal-delivery contract of the Scherpenheuvel-Zichem public welfare centre (OCMW) to the OCMW of Laakdal (EUR 633,360 incl. VAT), the contracting authority withdrew its decision within two weeks — the annulment action thereby lost its purpose, but the authority was still ordered to pay the costs.
What happened?
On 20 December 2011 the OCMW of Scherpenheuvel-Zichem decided to award the contract ‘Supply of meals for door-to-door delivery’ to the OCMW of Laakdal, at a verified tender price of EUR 633,360 including VAT (at the 0% rate). Hoeve Gervan BVBA, a private caterer that missed out on the contract, applied to the Council of State on 5 January 2012 for suspension under the extreme-urgency procedure and for annulment, challenging both the award to the OCMW of Laakdal and the implicit decision not to award the contract to itself. By judgment no. 217.429 of 23 January 2012 the Council suspended the implementation of the award decision under the extreme-urgency procedure; at the same time it recorded the withdrawal of the action against the implicit refusal decision. Two weeks later, on 7 February 2012, the welfare council itself revoked the suspended award decision. The annulment action thereby lost its purpose. Under the short-debates procedure of Article 93 of the Regent’s Decree of 23 August 1948, first auditor Luc Vermeire recorded this; the Council followed at the hearing of 22 June 2012, dismissed the action as having become ‘purposeless’ and ordered the OCMW of Scherpenheuvel-Zichem to pay the costs of the extreme-urgency application and the annulment action, assessed together at EUR 350.
Why does this matter?
The judgment shows the classic endgame of a successful extreme-urgency suspension: a contracting authority that withdraws its suspended award deprives the annulment action of its purpose, but does not escape the order for costs. The applicant’s gain then lies not in a judgment on the merits but in the practical result — the contested award is off the table — and in the costs. What is also striking here is the constellation: an OCMW awarded the meal delivery not to a private caterer but to another OCMW. That award between public bodies did not prevent Hoeve Gervan, as a private tenderer, from applying to the Council of State — successfully, since the suspension came as early as 23 January 2012 and the withdrawal followed on 7 February.
The lesson
For tenderers: an extreme-urgency suspension can take effect quickly — here the OCMW withdrew its award only two weeks after the suspension judgment. The annulment action then becomes purposeless, but do not leave the costs behind: the authority that withdraws its decision bears them. For contracting authorities: withdrawing a suspended award and redoing the procedure is often the sensible course, but budget for the procedural costs. And a public body awarding a contract to another public body should know that private market players can simply challenge that award before the Council of State.
Ask yourself
Do you know that an annulment action loses its purpose as soon as the contracting authority withdraws the contested award, but that the costs then fall on that authority? As a contracting authority, do you realise that withdrawing a suspended award ends the proceedings without a ruling on the merits, but not without a price tag? And as a private tenderer: are you not deterred when a contract is awarded to another public body — have you checked whether that award can be challenged?
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 →