An increased lawyers' costs award (€2,800) is not granted by claiming the authority 'knew it was wrong' — you must adduce concrete circumstances
The Council of State lifts the suspension of an award by the Province of Flemish Brabant to BVBA Geerts for waterway maintenance works, and grants only the basic €700 in lawyers' costs — not the requested €2,800 — because Audenaert adduced no concrete circumstances justifying the fourfold uplift.
What happened?
On 19 January 2017 the deputation of the Province of Flemish Brabant took two decisions at once: BVBA Andre Audenaert's offer for the contract 'Maintenance works on non-navigable second-category waterways in the Northern Demer basin – 2016-2017' (specifications no. 2016/10) was declared substantially irregular, and the contract was awarded to BVBA Geerts. Audenaert filed extreme urgency on 13 February 2017. By judgment no. 237.572 of 7 March 2017 the XIIth chamber suspended the award. Two days later, on 9 March 2017, the deputation withdrew the contested award itself. Audenaert filed no annulment application. The procedural closing followed the familiar pattern of article 17 §4, third paragraph of the coordinated laws on the Council of State: the suspension lapses automatically. The cost order similarly flowed naturally from the authority's withdrawal. But the judgment became interesting on one additional question. In its application Audenaert did not request the standard €700 in lawyers' costs but €2,800 — four times the basic amount. The reasoning: it had 'spared neither time, effort nor expense to avoid having to bring this application' and the Province was 'aware before the application was even filed that the award procedure was tainted by manifest illegality [yet] refuses to remedy this illegality'. The Council was unmoved. Citing article 30/1 of the coordinated laws on the Council of State and article 67 of the Regent Decree of 23 August 1948, the XIIth chamber (acting president Johan Bovin) ruled: 'On the assessment of the lawyers' costs, the applicant adduces no circumstances justifying an award higher than the basic amount of €700 set by the aforementioned article 67 §1, first paragraph. The mere fact that it had to bring this procedure does not suffice.' In other words: the bare fact that the bidder had to make efforts and that the authority had 'knowledge' of the irregularity is not an aggravating circumstance. The Council therefore granted only the basic €700 plus €200 court fee, to be paid by the Province of Flemish Brabant.
Why does this matter?
For procedural-tactic-minded lawyers and bid managers: an increased lawyers' costs claim can be made, but you must adduce concrete, exceptional circumstances. Generic arguments such as 'we did a lot of work', 'the authority knew it was wrong', or 'we tried to avoid this' are treated by the Council as ordinary features of every procedure and do not justify an uplift. What might actually work: documentable exceptional complexity of the file, demonstrable bad faith of the authority (e.g. false documents, manifest manipulation), or disproportionately high lawyer/expert involvement evidenced by invoices. For bidders weighing whether to litigate: budget for the basic €700, not for a higher amount you hope to obtain.
The lesson
In your extreme-urgency application, request the basic €700 in lawyers' costs, or substantiate any uplift in concrete and documented terms. General rhetoric about your 'efforts' or the authority's 'manifest illegality' will not suffice. The Council looks for specific aggravating factors such as case complexity and extraordinary lawyer expense — not the parties' subjective experience.
Ask yourself
If you request lawyers' costs above €700: can you point to specific elements of the uplift (complexity, document volume, specialised expertise) justifying each layer? Or does your reasoning amount to 'we did a lot of work'? In the latter case you will get €700.
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 →