Withdraw your award decision just before the urgency hearing? You'll bear the costs — even though the Council formally rejects the application
OVAM withdraws its award decision seven days before the urgency hearing: the Council formally rejects the application as without object, but orders OVAM to pay the court fee and €700 procedural indemnity because the Jan De Nul–Envisan joint venture is regarded as the prevailing party.
What happened?
On 13 December 2016 the Public Flemish Waste Agency (OVAM) awards the contract 'Soil remediation Steenweg 68 in Herk-De-Stad' (ref. BN151204) by open tender to the joint venture Wegrosan – HMVT, which it ranks as the lowest regular offer. The temporary commercial company NV Jan De Nul – NV Envisan, a competing bidder, contests this assessment and files an extreme-urgency action for suspension on 2 January 2017. The hearing is set for 19 January 2017 at 11:00 before the XIIth chamber. One week before the hearing — on 12 January 2017 — OVAM itself decides to withdraw its award decision of 13 December 2016. At the 19 January hearing, lawyer Evi Mees (substituting Peter Flamey) appears for the joint venture and lawyer Liesa Van Besouw (substituting Christophe Lenders and Joris Wouters) for OVAM. Auditor Thomas Maes delivers a concurring opinion. The XIIth chamber, composed of acting president Pierre Barra and registrar Silja Doms, finds that the withdrawal of 12 January 2017 has rendered the application without object, or at least caused the applicants to lose their interest. The operative part formally reads: 'The Council of State rejects the application.' Then comes the cost ruling. Applying article 30/1 of the coordinated laws on the Council of State and article 67 of the Regent's decree of 23 August 1948, the Council holds that, because of the withdrawal, the joint venture must be regarded as 'the prevailing party'. The court fee of €400 is ordered to be paid by OVAM, and a procedural indemnity of €700 is awarded to the applicants — also payable by OVAM. So the 'defendant party' does not formally lose, but pays €1,100 in costs.
Why does this matter?
For contracting authorities, this is a warning: a late withdrawal of an award decision is no cost-free escape from urgency proceedings. Whoever waits until the eve of the hearing to withdraw bears the court fee and the procedural indemnity of the bidder who filed the appeal. The court decides costs not based on the formal operative part ('rejects the application') but on who in substance prevailed because of the withdrawal. For bidders this means the opposite: an urgency action that becomes without object through withdrawal is not a lost action. Court fees and procedural indemnity will — provided they are claimed — be awarded, even if the application is technically rejected.
The lesson
As contracting authority: study an urgency application thoroughly the moment it lands. Do you suspect that withdrawing the award decision is the better option than losing the hearing? Withdraw early — not on the eve of the hearing. The later you withdraw, the more clearly the withdrawal is a direct consequence of the proceedings, and the more clearly the Council will treat the bidder as the prevailing party. As bidder: always claim the procedural indemnity (base amount €700) explicitly in your application. Without a claim, no award — not even when the other side withdraws.
Ask yourself
Are you a bidder and did the contracting authority withdraw its award decision during your urgency proceedings? Check whether your application contains an explicit claim for procedural indemnity. If not: make the claim orally at the hearing. Are you a contracting authority considering withdrawal? Do it within 7 days of receiving the application, not one week before the hearing.
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 →