Rejected for an abnormally low price, then saved by the withdrawal: the authority withdraws its award to Lixon and bears the costs
After the social-housing company Toit & moi had rejected Hullbridge Associated’s tender for a works contract on account of an apparently abnormally low price and awarded the contract to Lixon, it withdrew that decision; because no bidder challenged the withdrawal in time, it became definitive and Hullbridge’s extreme-urgency action lost its object, with the costs falling on the authority.
What happened?
By application of 26 December 2013, Hullbridge Associated sought the suspension, under extreme urgency, of two decisions of Toit & moi, the social-housing company of the Mons region: a decision of 13 December 2013 and a deliberation of 6 September 2013. By these, Hullbridge’s tender for the contested works contract had been declared irregular for an apparently abnormally low price, the contract had been awarded to Lixon, and the authority had decided to inform the Commission for the approval of contractors of the rejection of Hullbridge’s tender for that abnormally low price. By an earlier judgment no. 226.353 of 6 February 2014, the Council of State had stayed its ruling and adjourned the case sine die. Toit & moi then, by decision of 17 January 2014, withdrew the contested decision of 6 September 2013 — which included the award to Lixon and the notification to the approval commission. That withdrawal was notified on 22 January 2014 to Lixon, to whom the contract had been awarded; the notification stated the remedies and the forms and time limits to be observed. Lixon did not seek annulment of the withdrawal decision within the prescribed time limit. The Council of State inferred that the withdrawal could be regarded as definitive, which deprived the action of its object. Because it was the withdrawal of the contested act that rendered the dispute without object, that same withdrawal justified placing the costs on the authority. The Council held that there was no longer any need to rule and placed the costs, set at 175 euros, on Toit & moi.
Why does this matter?
The judgment illustrates a recurring pattern in procurement litigation: a rejected bidder turns to the Council of State, and before any ruling on the merits the authority withdraws its own decision. The action then formally ends ‘without object’, but that is no defeat for the applicant. The gain lies in the practical result — the contested award, here to Lixon, is gone — and in the costs ruling: because it is the withdrawal that empties the dispute, the authority bears the costs. The judgment also shows precisely when a withdrawal becomes definitive: once it is notified to the beneficiary with the remedies, forms and time limits, and no one challenges it in time. Only then is the action genuinely without object. For a social-housing company that had also intended to inform the approval commission of an ‘abnormally low price’, the case is a warning: such a step has consequences for the contractor and is best not taken lightly when the award itself is still shaky.
The lesson
If, as a rejected bidder, you challenge an award and the authority withdraws its decision, do not treat the sequel as lost. The action indeed becomes without object, but the contested award disappears and the costs fall on the authority. Do check that the withdrawal was notified to the beneficiary — here Lixon — with the remedies, forms and time limits, because only then does it become definitive and your action truly without object. As an authority, the lesson is that withdrawing an award to correct a procedure is legitimate, but you bear the costs of it; and that a decision to report a bidder to the approval commission for an abnormally low price weighs heavily on that contractor and must therefore be carefully weighed.
Ask yourself
Do you realise that an award withdrawn by the authority renders your action without object, yet the contested award disappears and the costs fall on the authority? Have you checked whether the withdrawal was notified to the beneficiary with the remedies, forms and time limits, so that it is definitive? As an authority: do you weigh the consequences of reporting a bidder to the Commission for the approval of contractors for an ‘abnormally low price’, given the impact on that contractor? Do you know that the withdrawal of the contested act in itself shifts the costs to the authority, even without a ruling on the merits?
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 →