Withdrawing a tender notice without clear communication costs you €1,500 — even when the Council declares the action 'devoid of purpose'
The Council of State finds that an extreme-urgency action against a launch decision by the municipality of Dilbeek is devoid of purpose because the municipality had already withdrawn the decision ten days before the action — yet it orders Dilbeek to pay €1,500 in costs because that withdrawal had never been clearly communicated to the bidders.
What happened?
On 24 April 2017 the College of Mayor and Aldermen of Dilbeek launched a reserved public contract for door-to-door textile collection 2017-2018 via a simplified negotiated procedure with prior publication. Under article 22 §2 of the Act of 15 June 2006 the contract was reserved for sheltered workshops and businesses with social and professional integration objectives — excluding classical commercial textile collectors. Four such businesses — BVBA VICT, NV Curitas, NV Recutex and BVBA Victrans — jointly filed an extreme-urgency application on 18 May 2017. What they did not know: ten days before their action, on 8 May 2017, the municipality had already withdrawn the decision of 24 April. But it had nowhere clearly communicated this. According to the facts as stated by the applicants — and, in the absence of an administrative file lodged by the municipality, deemed established under article 21 third paragraph of the coordinated laws on the Council of State — Dilbeek maintained uncertainty until its final email to the bidders on 16 May 2017 about whether or not a formal withdrawal decision existed. Only by registered letter of 26 May 2017 — eight days after the action — did Dilbeek transmit the withdrawal decision of 8 May to the Council. The auditorate had to request the original decision of 24 April separately and only received it on 31 May, five days before the hearing. At the hearing of 6 June 2017 the municipality did not appear and was not represented. Under article 4 fourth paragraph of the Royal Decree of 5 December 1991 it is then deemed to consent to the application. Chamber president Dierk Verbiest finds that, since the contested decision had already been withdrawn on 8 May, the application is devoid of purpose. Formally the Council rejects the action. But then the bill arrives. The Council: 'Given that the respondent appears to have withdrawn the contested decision without notifying the applicants clearly and unambiguously of that withdrawal in good time, it is appropriate to charge the costs of the proceedings, primarily the docket fee of €800, to the respondent.' Despite the formal rejection, the four bidders are considered the 'successful party' under article 30/1 §1 and are awarded a procedural indemnity of €700. Dilbeek thus pays €1,500 in total. The Council clarifies — referring to the General Assembly's judgment no. 233.611 of 26 January 2016 — that only one procedural indemnity is awarded, not one per applicant: four claimants, one dispute, one indemnity.
Why does this matter?
For contracting authorities: withdrawing a launch or specifications decision is no soft landing if you leave the bidders in the dark. A bidder who applies to the Council of State on the basis of a procedure that has meanwhile been withdrawn without his knowledge does not pay procedural costs — they are passed on entirely to the authority, however formally it 'wins' on devoid-of-purpose grounds. For bidders weighing extreme-urgency actions: vague signals from the authority ('we are reviewing', 'we will revert', 'awaiting internal advice') are no reason to drop your action. As long as the contested decision has not been officially and demonstrably withdrawn, your interest in the action remains current — and if it later turns out that the authority had already withdrawn without telling you, it pays your docket fee and procedural indemnity. For lawyers running joint extreme-urgency applications for multiple bidders: only one procedural indemnity is awarded, not one per client — split it internally based on workload.
The lesson
If you are a contracting authority: when withdrawing a launch, specifications or award decision, send a registered letter within the week to every known interested bidder containing (a) the withdrawal decision itself, (b) the date it was taken, and (c) its consequences for the procedure. A vague email or silence costs you at least €1,500 in an extreme-urgency case. As a bidder: at the slightest doubt, formally request — by registered letter or registered email — the status of the procedure and keep that correspondence. If you then file an extreme-urgency action against a meanwhile-withdrawn decision, you protect your right to recover costs under article 30/1.
Ask yourself
If the contracting authority indicates orally, in a meeting or by a vague email, that it is 'considering withdrawal', 'will revert shortly' or 'is reviewing the file internally': do you have a written withdrawal decision with a date, or are you still in uncertainty? In the second case your extreme-urgency action remains admissible, and the authority bears your costs in the event of withdrawal.
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 →