The contracting authority withdraws its award during your suspension procedure — and you get a 700 euro procedural indemnity for free
DUO Catering challenged the award of a school catering contract to TCO Service; before the hearing, the OCMW of Ottignies-Louvain-la-Neuve withdrew the decision — result: case moot, but full procedural indemnity and costs charged to the OCMW.
What happened?
On 27 December 2016, the Social Action Council of OCMW Ottignies-Louvain-la-Neuve awarded the contract for 'preparation of hot meals for communities and kitchen management' to TCO Service SPRL. The vote was clear: 7 votes for TCO, 3 for DUO and 0 for SODEXO. The award went to the bidder with the most economically advantageous regular offer based on the award criteria. On 11 January 2017, DUO Catering filed an extreme-urgency suspension request. The hearing was set for 6 February 2017. But on 30 January 2017 — four days before the hearing — the OCMW withdrew the contested decision. The withdrawal was notified to all bidders on 31 January 2017. None of them challenged the withdrawal within the deadline, making it final. The case was postponed sine die. On 8 August 2017, it was rescheduled for 7 September 2017. This time DUO's counsel did appear, and requested the base procedural indemnity of 700 euros. The Council of State, VIth chamber sitting in extreme urgency, ruled that the appeal had become moot. But — and this is the heart of the matter — the withdrawal is, under settled case law, a 'substitute for an annulment'. The contracting authority is therefore considered the losing party. DUO was awarded the base procedural indemnity of 700 euros plus the other costs (200 euros in court fees), and the OCMW had to pay.
Why does this matter?
Bid managers and corporate legal departments often shy away from extreme-urgency proceedings: court fees, lawyers, and 24/7 standby during holiday periods. This judgment is useful reassurance: if the contracting authority withdraws its decision after you have filed an extreme-urgency procedure, you don't bear the procedural costs. On the contrary: your 700 euro procedural indemnity AND the 200 euro court fees are paid by the authority. That lowers the threshold for seriously considering an extreme-urgency procedure, because your 'risk of losing with costs' disappears the moment the other side decides to correct its mistake.
The lesson
If your extreme-urgency action forces a contracting authority to withdraw its decision, always claim the procedural indemnity at the hearing — even if the case is substantively moot. You don't need to 'win' to qualify as the prevailing party under article 30/1 of the Council of State laws: the withdrawal itself proves you were right.
Ask yourself
Has the contracting authority withdrawn your decision after your extreme-urgency procedure? Send a timely 'note de liquidation des dépens' to the Council explicitly requesting the base procedural indemnity of 700 euros. Without that request, the Council cannot award you any indemnity — DUO did this correctly and got the full amount.
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 →