Withdrawing your award decision after a suspension request? You're still the losing party — and you pay the costs
The City of Liège withdraws its award decision during a pending extreme-urgency procedure; the appeal becomes moot, but the contracting authority bears the procedural indemnity and other costs as if it had lost the case.
What happened?
On 11 February 2016, NV Etablissements Christian Lombet filed an extreme-urgency appeal against two decisions by the City of Liège concerning a works contract for replacing gas convectors with central heating at the Bonne Nouvelle school: the non-selection of Lombet itself (notified on 26 January 2016) and the award to a competitor. The hearing was set for 4 March 2016. Five days before, on 29 February 2016, the City announced its intention to withdraw the award and abandon the procurement procedure. The case was postponed sine die. On 4 March 2016, the municipal college effectively withdrew both contested decisions and abandoned the procedure. Bidders were notified on 14 March 2016 by registered mail, with information on appeal options. None of them challenged the withdrawal within the prescribed period. On 14 June 2016, the Council of State found that the appeal had become moot. But because the withdrawal constitutes 'a form of surrogate for an annulment', the City of Liège was considered the losing party. Lombet had claimed €3,360 in procedural indemnity (€2,800 plus 20%); the Council limited this to the basic amount of €700, as Lombet failed to justify why the maximum was warranted. The City was additionally ordered to bear €200 in other costs.
Why does this matter?
When in doubt about the legality of an award, withdrawal is often the right call — faster, cheaper and cleaner than waiting for a suspension or annulment ruling. But many contracting authorities assume this lets them avoid the costs of the procedure. It doesn't: as soon as the opposing party has filed an appeal, you owe them the procedural indemnity and other costs. For bid managers: even if the contracting authority pulls the plug after your appeal, you recover your procedural costs.
The lesson
If you withdraw an award decision after a suspension or annulment appeal has been filed, expect to be ordered to pay the procedural indemnity (basic amount €700 in 2016) and other costs to the appellant. The withdrawal moots the appeal but legally counts as a 'surrogate for annulment' — the appellant is the prevailing party. Build these costs into your risk analysis before relaunching the procedure.
Ask yourself
When your contracting authority withdraws an award after a bidder has filed an extreme-urgency or annulment appeal: has legal counsel factored the procedural indemnity and costs into the case file?
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 →