Contracting authority withdraws its award after the Council suspends? The case becomes moot — and you still pay 700 euros in procedural costs
After a suspension order against the award of a lot for legal recovery services, ORES Assets and RESA withdrew their award decisions; the Council of State declares the annulment action moot, lifts the suspension, but charges the procedural costs to the contracting authorities.
What happened?
On 16 September 2015 the inter-municipal ORES Assets (acting in its own name and as mandate-holder for RESA) awarded lot 12 (ex-arrondissement Tournai) of its public procurement of legal recovery services to lawyer Olivia Decoene. Pinchart, Collee & Giuliani — ranked second — appealed. By judgment 233.365 of 24 December 2015 the Council suspended both award decisions. Both authorities then withdrew: ORES on 2 March 2016, RESA on 11 March (corrected for material errors on 22 March). The withdrawals were notified by registered post on 14 and 22 March 2016 with mention of the right of appeal. No appeal was filed within the deadline, so the withdrawals became final. The Council declares the annulment action moot, lifts the suspension, and rejects RESA's request to be removed from the case: a withdrawal decision had been signed in RESA's name under sub-delegated authority. The Council orders ORES and RESA to share equally the 700-euro procedural indemnity (350 each) and the 400-euro court fee.
Why does this matter?
For contracting authorities and mandate-holders: a timely withdrawal after a suspension ends the annulment battle, but not without cost. The 700-euro procedural indemnity is due to the prevailing applicant even when the case becomes moot. For mandate constructions (e.g. an inter-municipal awarding on behalf of a commercial company), there is no exit door: as long as there is a decision in your name, you remain jointly liable. For wrongly-passed-over bidders: even if you don't end up with the contract, you still recover procedural costs.
The lesson
If your contracting authority withdraws its award decision after a suspension order: notify all bidders of the withdrawal with mention of their right of appeal, so the withdrawal becomes final after the deadline. Budget for the 700-euro procedural indemnity in favour of the applicant. No increase applies when the case is declared moot.
Ask yourself
Has your authority withdrawn the contested decision after a suspension order? Check: (1) was the withdrawal notified to all bidders with mention of the right of appeal? (2) has the appeal deadline expired without challenge? (3) has your lawyer asked the Council to declare the case moot with procedural indemnity? Three yes = the case can close cleanly.
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 →