If you withdraw your award after a UDN is filed, you still pay the costs — even if the case becomes 'moot'
The City of Antwerp withdrew its award to Ferro-Seaport after Wolters-Mabeg filed for extreme urgency — the Council dismisses the application as moot, but still orders the city to pay €700 procedural indemnity and €200 court fee to the applicant.
What happened?
On 10 April 2015 the City of Antwerp awarded lot 5 (delivery of tree grates) of a framework contract for various street furniture to Ferro-Seaport in Drongen. Wolters-Mabeg, a Bilzen supplier, was not selected. On 27 April 2015 it sought suspension in extreme urgency against that award. The hearing was set for 13 May 2015. Pending the procedure the city withdrew its award decision — presumably to redo things without risking an adverse ruling. The application thereby lost its object and the Council had to dismiss it formally. But that is not the end of the story. At the hearing Wolters-Mabeg's counsel requested an order against the city for €700 in procedural indemnity. The Council applied article 30/1 of the coordinated Council of State Acts together with article 67 of the Regent's Decree of 23 August 1948: because the contested decision was withdrawn, the applicant must be regarded as the prevailing party. The city pays €700 procedural indemnity to Wolters-Mabeg, plus €200 court fee. A three-page arrest, but a crystal-clear principle.
Why does this matter?
For contracting authorities: withdrawing an award once a UDN has been filed is not 'free'. You save yourself a suspension and buy time, but you pay the applicant's procedural indemnity. For bidders considering a UDN: do not be discouraged when the authority withdraws and reissues — that withdrawal is, in legal terms, a defeat, and you are entitled to your costs.
The lesson
As a contracting authority faced with a UDN: weigh the procedural costs before deciding to withdraw. A withdrawal designed to 'save' a weak decision costs you €700 plus court fee — and signals to the market that your original motivation was shaky. As a bidder: ask explicitly at the hearing for the procedural indemnity, even if the other side has already withdrawn.
Ask yourself
Have you, as a contracting authority, ever withdrawn an award after a UDN was filed? Was the procedural indemnity paid in that file? If not, check whether that cost is not still pending — and use this arrest at your next decision point to weigh the trade-off (withdrawal versus continued procedure) more consciously.
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 →