Withdrawing after a UDN suspension: you don't just lose the contract, you also pay EUR 900 to the bidder
After the Council suspended the award to FLUX of Ostend's Christmas lighting contract (judgment 232.491), the city withdrew the award decision — whereupon the Council declared the subsequent annulment action without object and ordered the city to pay EUR 200 in court fees plus EUR 700 in basic procedural indemnity to the applicant, without the increase that normally applies for the combination suspension + annulment.
What happened?
On 1 June 2015 the city of Ostend, using a simplified negotiated procedure with publication, published specifications 130.L.287 for the rental, installation, connection and removal of Christmas lighting at various locations in the city. Submission deadline: 25 June 2015, 11 a.m. Bid opening resulted in an award to BVBA FLUX (Zedelgem) for EUR 84,599.00 excl. VAT (EUR 102,364.79 incl. VAT). Unsuccessful bidder NV Algemene Electrische Onderneming Kamiel Verstraete en Zoon was notified on 7 September 2015 and immediately filed an extreme-urgency action. On 8 October 2015 the Council, by judgment 232.491, suspended the execution of the award decision of 31 August 2015. Four days later, on 12 October 2015, the Ostend Board of Mayor and Aldermen decided to withdraw the contested award. The applicant nevertheless maintained its annulment action: on 21 September 2015 — alongside the urgency action — it had also electronically filed an annulment request with a EUR 10,000 daily fine. With the withdrawal the action lost its object and became, in the terms of Article 93 of the Regent's Decree of 23 August 1948, 'pointless'. Chamber President Johan Bovin records this — and then turns exclusively to the cost question. Three elements deserve attention. First: although the action is formally rejected because it has lost its object, the respondent (city of Ostend) bears the costs of the urgency action. Having first been suspended and then withdrawing its decision, the city has effectively lost — it was the 8 October suspension that triggered everything. The applicant is therefore considered, in the Council's words, 'the prevailing party'. Second: the applicant had claimed an increased procedural indemnity of EUR 840. Under Article 67 of the Regent's Decree, that amount can be awarded when a urgency action is combined with an annulment action. The Council refuses the increase here precisely because the annulment action has lost its object — the combination increase presupposes that both actions remain 'alive'. The Council therefore awards only the basic indemnity of EUR 700. Third: the intervening party FLUX bears its own intervention costs — EUR 150 in court fees — because its intervention sits in the wake of a losing case. The final bill: the city of Ostend pays EUR 200 in court fees + EUR 700 in procedural indemnity to the applicant; FLUX pays EUR 150 in its own intervention costs.
Why does this matter?
Contracting authorities often think: once my award decision is suspended, I can just withdraw it and I'm 'rid of the problem'. That's true for the substance — the action becomes pointless — but not for the costs. The Council still considers the applicant the 'prevailing party' and charges EUR 900 (court fees + basic indemnity) to the authority. For bid managers of unsuccessful bidders, that's an encouraging signal: a successful urgency action that ends in withdrawal is no Pyrrhic victory — you recover basic costs. For contracting authorities, it's a reminder that 'quickly withdrawing' is not financially free and that the right approach is often to fix the procedure on the merits rather than flee into withdrawal.
The lesson
As a bid manager: after a successful urgency-action suspension, withdrawal often follows. Don't artificially keep your annulment action alive hoping for the increased procedural indemnity — you won't get it, because the case will be declared pointless. Focus instead on the re-tender that the authority will have to organise. As a contracting authority: withdrawing after a suspension is procedurally correct, but it costs you EUR 900 in court fees and basic procedural indemnity to the applicant, plus any intervention costs. Make sure your new award decision actually fixes the errors that led to the suspension — otherwise you risk a second round with the same bidder and the same bill.
Ask yourself
Just received a urgency-action suspension or just withdrew an award decision? Do a quick cost check. Applicant: have you actually claimed the EUR 200 court fee and EUR 700 basic indemnity in a final settlement — or are you leaving money on the table? Contracting authority: did your withdrawal decision also explicitly state which errors you have fixed for your new award round? If not, a second urgency action with the same outcome is just a matter of time.
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 →