Withdrawal before judgment in an ordinary suspension action — no cost recovery as in extreme-urgency cases with withdrawal
The Council of State records that BVBA ASBO withdraws its ordinary suspension action against the award of a green-maintenance contract to De Vlieger for €972,300.01 excl. VAT, without ruling on costs or procedural indemnity.
What happened?
On 25 May 2016 the Flemish Region, Roads and Works Agency West Flanders, takes an award decision in an open call for tenders for green maintenance in district 312 Kortrijk motorways (specifications 1M3D8J/18/12, file 030/D312/131). The award report is communicated to BVBA ASBO on 6 June 2016. The contract is not awarded to ASBO but to De Vlieger BVBA for €972,300.01 excl. VAT (€1,176,483.01 incl. VAT). On 5 August 2016 ASBO files an ordinary action for suspension of that award decision. Not extreme urgency — within the 60-day time limit of article 17 §1 of the coordinated laws, after the expiry of the standstill period. The Flemish Region files a note. First auditor Jos Stevens prepares a report. The parties are summoned to the hearing of 20 December 2016. Counsellor Johan Bovin presents the report. Lawyer Yasmine D'Hanis (loco Kris Verberckmoes) appears for ASBO and lawyer Sophie Bleux (loco Kris Wauters) for the Flemish Region. First auditor head of section Luc Vermeire issues a concurring opinion. Then, before that opinion can be turned into a judgment: by letter of 19 December 2016 — one day before the hearing — ASBO informs the Council that it withdraws its action for suspension. On 19 January 2017 the 12th Chamber under acting president Johan Bovin records the withdrawal. No substantive assessment. No costs awarded. No procedural indemnity.
Why does this matter?
Anyone who files an ordinary suspension action (not extreme urgency) and later drops the case does not recover costs as is the case when the contracting authority withdraws its decision. The difference lies in who walks away from the case: if the authority withdraws the contested decision, you count as the 'successful party' under article 30/1 of the coordinated laws and are entitled to docket fee reimbursement and procedural indemnity. If you withdraw yourself, your docket fees and your lawyer's fees remain at your own expense. For bidders this means that before any withdrawal you check: has the contracting authority taken a new decision in the meantime that makes your action devoid of purpose? If so, frame your 'withdrawal' as a request for a finding of devoid of purpose due to withdrawal — the outcome looks identical, but the cost regime is fundamentally different.
The lesson
Never simply withdraw a suspension action without checking whether the contracting authority has in the meantime taken a step (withdrawal, annulment, re-award) that makes your action devoid of purpose. In that case you should request a finding of devoid of purpose under article 30/1 — not a withdrawal. The cost difference can run to several hundred euros for an SME, but more importantly in principle: you show that the procedure was justified and that the authority had to step in for lack of legality.
Ask yourself
Before I withdraw my suspension action: has the contracting authority in the meantime withdrawn, annulled or replaced the contested decision? Has it admitted that its motivation was insufficient? Have I obtained an effectively favourable result through the procedure (a re-award, a new analysis)? If so, I do not file a withdrawal but request a finding of devoid of purpose under article 30/1 with costs against the respondent.
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 →