Brussels transit withdraws the Evobus bus award before the hearing: the action falls away, the bill stays with the authority
VDL Bus Roeselare challenged, under extreme urgency, the award of both lots of standard and articulated buses to Evobus Belgium — and the prior decision by which the Brussels transit authority had fixed the terms of the specification — but the authority withdrew its award decision eight days before the hearing, so the action lost its object and the Council of State nonetheless placed the costs on the authority.
What happened?
The Brussels Intercommunal Transport Company (MIVB/STIB) launched a supply contract in two lots on the basis of specification AB-2012 ‘Standard and articulated buses’. On 17 September 2013 it decided to award both lots to Evobus Belgium. VDL Bus Roeselare, a bus manufacturer and unsuccessful bidder, filed an application for suspension under extreme urgency on 2 October 2013. Its action was broader than usual: it targeted not only the award decision itself, but also ‘the related prior decision fixing the terms of the aforementioned specification underlying that award decision’ — in other words, the rules of the game by which the authority had shaped the contract. It never came to a debate on the merits. On 9 October 2013 the board of the transport company expressly withdrew the contested award decision. Its counsel informed the Council of State by a letter sent on 16 October 2013, eight days before the hearing of 24 October 2013. The Council could therefore be brief. With the contested decision withdrawn, the action had lost its object — or at the very least the applicant had lost its interest in it. The operative part words this as a dismissal of the action, but the ground is not that VDL Bus Roeselare was wrong: there was simply nothing left to suspend. That is also clear from the costs ruling, which runs in the opposite direction from what a ‘dismissal’ would suggest. The Council held that ‘in the circumstances it is appropriate to place the costs on the defending party’, and ordered the transport company to pay the costs of the action, set at 175 euros. In other words, the authority that makes the contested decision disappear pays for the proceedings it thereby renders superfluous.
Why does this matter?
An authority that withdraws its own award decision during suspension proceedings takes the safest exit: it avoids a ruling on the merits, keeps its hands free to redo the procedure, and deprives the action of its object. This judgment shows that the exit is not free. Even though the operative part formally reads ‘the Council of State dismisses the action’, the costs go to the authority — precisely because the applicant in fact gets what it wanted. For those following the case law, this is the seed of what the Council will later name expressly: withdrawal as a ‘disguised annulment’ (succédané d’une annulation contentieuse), whereby the withdrawing authority counts as the losing party and bears the costs. Here that happens without the express label and without a procedural indemnity, in a sober formula — ‘in the circumstances it is appropriate’ — but on the same logic. For a rejected bidder the practical message matters. ‘Without object’ reads like a defeat and is not one. The contested award is gone, the contract must be redone, and you do not bear the costs. So it pays not to drop the proceedings as soon as a withdrawal is announced, but to have the case decided and to ask for the costs ruling. Finally, note the reach of the action: VDL Bus Roeselare attacked not only the award but also the prior decision fixing the specification. The withdrawal leaves that question unanswered — but it shows that the terms of the specification themselves can be a line of attack, not merely their application.
The lesson
If, as a rejected bidder, you learn that the authority is withdrawing its award decision, do not simply drop your proceedings. Your action becomes without object, but that is no loss: the contested award disappears and the Council of State may — as here — place the costs on the authority, even though the operative part formally says ‘dismisses’. Ask for that costs ruling expressly. Consider too, where the root of the problem lies in the specification itself, challenging the decision by which its terms were fixed, as happened here. As a contracting authority, weigh withdrawal properly. It is a legitimate way to correct a flawed procedure and spares you a ruling on the merits that would bind you in a further round — but it is not free: you risk bearing the costs of proceedings your own decision provoked. Do it in good time and communicate it clearly: the transport company informed the Council eight days before the hearing, allowing the case to be wrapped up in a single move.
Ask yourself
Do you know that a withdrawn award decision renders your action without object, yet leaves you the practical winner — the contract must be redone? Have you expressly asked for the costs ruling, despite an operative part reading ‘dismisses the action’? Does the defect you are challenging lie in the application of the specification, or in the specification itself — and in the latter case, have you also challenged the decision fixing its terms? And as an authority: do you realise that a withdrawal can leave you bearing the costs, even without a ruling on the merits, and have you notified the withdrawal in time to the Council and to all bidders?
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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 →