Suspension granted, decision withdrawn: the annulment action loses its object — and the 20% bonus on procedural costs is gone
When the contracting authority withdraws its award decision after the Council of State has already suspended it, the subsequent annulment action loses its object — the applicant still receives the basic procedural indemnity of 700 euros, but not the 20% surcharge that the Procedural Regulation grants to a 'normal' winner.
What happened?
On 25 February 2015 the Walloon Region had awarded a service contract for the maintenance and breakdown service of its 'Wacondah' hydrological telemetry network (specifications no. 02.02.Q3-14B88) to NV Cofely-Solelec. The temporary association Yvan Paqué-HEMMIS, which had also bid, challenged the award. On 30 March 2015 the Council of State, in judgment no. 230.692, suspended the implementation of the award in extreme urgency. Then, on 24 April 2015, Paqué/HEMMIS also filed a regular annulment action against the same decision. Two months later — on 27 May 2015 — the Walloon Region itself withdrew its award decision. The withdrawal was notified by registered mail on 3 June 2015, with mention of the available remedies and time limits. No one filed an appeal against the withdrawal within the prescribed period, making it final. The Council therefore notes that the contested decision no longer exists and that the annulment action has lost its object. The applicants asked in their supplementary memorial for a procedural indemnity of 700 euros 'increased by 20%' (840 euros), under art. 67, §2 of the Regent's Decree, on the ground that the annulment action had been preceded by an extreme-urgency suspension. The Council awards only the basic amount of 700 euros: art. 67, §2, third paragraph of the Procedural Regulation (as inserted by the Royal Decree of 28 March 2014) excludes the surcharge whenever the Council finds that the annulment action has lost its object. The other costs (totalling 950 euros) are charged to the Region for 800 euros and to the intervening party for 150 euros.
Why does this matter?
When a bidder wins an extreme-urgency suspension, the contracting authority will often withdraw rather than defend on the merits — and that is usually the right choice for public administration. The consequence for the applicant is that there is no full annulment, because the annulment action loses its object. Three practical effects follow that bid managers must factor in. First: there is no judicial ruling on the merits of the pleas raised, so the original criticism of the award remains unresolved — the contracting authority can take a new decision that may in theory have the same defects, and you will have to litigate again. Second: you do receive the basic 700 euros procedural indemnity (because you are deemed to have prevailed in the sense of art. 30/1) — but the 20% surcharge that you would normally receive when the annulment was preceded by an extreme-urgency suspension is excluded when the action loses its object. Third: the intervening party (the original awardee) is not exempt from costs — here it bears a separate small amount (150 euros). For contracting authorities, the other side: after a suspension in extreme urgency, withdrawal is the cleanest way out — it avoids a reasoned annulment that might be cited as precedent in later cases, limits the cost order to the basic amount, and keeps open the possibility of a new decision.
The lesson
If you file an annulment action after winning a suspension: know that the action will most likely lose its object as soon as the contracting authority withdraws its decision. Expect 700 euros in procedural costs, not 840. And weigh whether a full annulment action still makes sense: if your original goal was to block the award and you achieved that in extreme urgency, an annulment is often more symbolic and cost-generating than strategically useful. For contracting authorities: after a suspension in extreme urgency, withdraw-and-re-award is often the cleanest solution — provided that the substantive criticism is actually remedied, otherwise you end up in front of the Council a second time.
Ask yourself
Have you just won a suspension in extreme urgency? Before filing an annulment action, ask yourself: what do I still want to achieve — a better cost order, a principled ruling, a formal annulment? Expect the contracting authority to withdraw, and your action to lose its object. And if the authority takes a new decision after the suspension: read it carefully — does it repeat the defects you already raised, or has it really fixed them?
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 →