The Geraardsbergen welfare centre withdraws its incontinence-supplies award as soon as SCA goes to the Council of State — and pays the costs for it
After SCA Hygiene Products applied on 21 March 2013 for the extreme-urgency suspension of the award of the supply contract for incontinence materials for the Denderoord and De Populier care homes, the public welfare centre (OCMW) of Geraardsbergen withdrew its own award decision on 27 March 2013 — leaving the application without object and prompting the Council of State to charge the costs of 175 euros to the OCMW.
What happened?
On 27 February 2013 the OCMW of Geraardsbergen awarded a supply contract titled ‘Elderly care – Denderoord and De Populier care homes – supply of incontinence materials’ to a competitor of SCA Hygiene Products. SCA, whose tender had not been retained as the economically most advantageous within the meaning of article 16 of the then applicable public procurement act of 24 December 1993, lodged an extreme-urgency suspension application on 21 March 2013, directed both against the award to the beneficiary and against the implicit refusal to award the contract to itself. The case came before the XIIth chamber on 2 April 2013, but no debate on the merits took place: the welfare council had itself withdrawn the contested decision on 27 March 2013 — six days after the appeal and a few days before the hearing. The Council of State found that the application had thereby become without object, or at least that SCA had lost its interest in it, and rejected the application. The costs ruling is what matters: ‘in the given circumstances’ — the withdrawal only came after SCA had gone to the Council — the Council charged the costs of 175 euros to the OCMW.
Why does this matter?
This short 2013 judgment shows a pattern that still marks procurement practice today: an authority that withdraws its own award decision after an extreme-urgency appeal escapes the ruling on the merits, but not the bill. The Council charged the costs to the OCMW because the withdrawal only followed the appeal — the seed of what would later, with article 30/1 of the coordinated laws, grow into the settled doctrine that such a withdrawal counts as a disguised annulment, making the authority the losing party, procedural indemnity included. For the applicant the gain is double, even without a judgment on the merits: the contested award disappears and the contract must be redone, while the costs of the procedure do not stick to him. That this played out in an everyday supply contract — incontinence materials for two care homes — underlines that even modest contracts in the care sector can lead to litigation, and that a timely extreme-urgency appeal can quickly bring an authority to its senses.
The lesson
For bidders: an extreme-urgency appeal can achieve its goal even before the Council rules — the pressure of the procedure alone can move the authority to withdraw, and the costs then follow the authority, not you. So do not experience a withdrawal as a lost case. Do follow up on what happens next: the contract must be put back on the market and your chance returns. For authorities: withdrawing a shaky award decision yourself is wiser than awaiting an annulment, but do it before an appeal is pending — whoever only withdraws after the case is before the Council of State bears the costs of that appeal.
Ask yourself
Do you know that an authority which withdraws its award decision after you have lodged an extreme-urgency appeal generally bears the costs of that appeal? After a withdrawal, do you track whether and how the contract is re-tendered, so you do not miss your second chance? And as an authority: do you thoroughly re-examine a contested award decision as soon as an unsuccessful bidder raises objections, so that any withdrawal comes before — and not after — proceedings at the Council of State?
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 →