UDN dismissal with €900 in costs — five days later the Council rectifies its own ruling: costs reserved because the annulment procedure is still pending
Five days after the UDN dismissal of Constructiewerkhuizen De Meyer's application against Waterwegen en Zeekanaal, the Council corrects a material error in original ruling 239.468: the definitive order to pay €200 court fee and €700 procedural indemnity is removed because the 'further course of the procedure' (the parallel annulment) requires the costs decision to remain open.
What happened?
On 14 June 2017 NV Waterwegen en Zeekanaal launches an open call for tenders for the revision of the upper roller carriage of the rolling gate at the Sea Lock at Wintam (specifications 16EI/17/51, services contract under the Public Procurement Act of 15 June 2006). The specifications require 'on pain of absolute nullity' two documents with the bid: (1) a document referring to the safety and health plan (VGP) describing how the contractor will take it into account, and (2) a separate price calculation for prevention measures under Article 30, second paragraph, 2° of the Royal Decree on Temporary or Mobile Construction Sites of 25 January 2001. On 18 July 2017 a rectification of the notice is published. On 7 August 2017 two bidders submit offers: Constructiewerkhuizen De Meyer and Demako. The safety coordinator notes on 10 August that De Meyer did not include a separate price calculation, only a general mention that 'safety and health costs are by default included in our hourly unit rates'. On 21 August De Meyer subsequently sends in a detailed calculation — the contracting authority refuses it as prohibited regularisation. The award goes to Demako on 13 September 2017. De Meyer files extreme-urgency proceedings on 29 September 2017. Ruling 239.468 of 19 October 2017 dismisses the application: a general 'standard included in unit prices' mention is not a separate price calculation, the patere legem principle compels the authority to comply with its own specifications, and post-hoc regularisation would breach equality. The dictum of 239.468 orders De Meyer to pay €200 court fee and €700 procedural indemnity to the contracting authority. But on closer review that is wrong: because an annulment action is still pending, the costs decision should not yet be definitive — it should be 'reserved' until the annulment is decided. On 24 October 2017, five days after the original ruling, the same XIIth chamber issues ruling 239.537 correcting the material error: the second paragraph of section 'VI. Conclusion' is replaced by 'It is appropriate, given the further course of the procedure, to reserve the costs of the application', and Article 2 of the dictum (the €900 award) is deleted along with the dictum's numbering. The substance of the dismissal is unchanged: De Meyer's UDN is and remains rejected.
Why does this matter?
For litigants this is a useful reminder of an easily-missed subtlety. When you bring both an UDN and a parallel annulment action — which is standard, since the UDN does not replace the annulment — the UDN judge should reserve the costs rather than impose them definitively. The reason: the same facts will be reviewed again in the annulment, and costs may fall differently there. A UDN ruling that accidentally already imposes costs can and must be corrected via a rectifying ruling. For bidders this means two things: (1) if you have filed both UDN and annulment, check the dictum of the UDN ruling immediately after delivery — if the costs appear definitively settled, request rectification at once. (2) if you face an applicant who only filed UDN without annulment, the costs ARE definitive immediately — an instant closing advantage for the contracting authority. More generally, the existence of the procedural tool 'rectifying ruling' at the Council of State is itself relevant: material errors in dicta are not corrected via appeal, but by the Council itself within days. As to the substance of the original ruling 239.468: the rule that a generic mention 'included in unit prices' is not a valid separate price calculation for VGP safety measures stands fully — and that is the real lesson for bid managers in this file.
The lesson
Two lessons at two levels. Procedurally: if you have both UDN and annulment pending, check the dictum of the UDN ruling immediately — a definitive costs award in that situation is a material error to be corrected by a rectifying ruling. Substantively (from the underlying ruling 239.468): when the specifications require 'on pain of absolute nullity' a separate price calculation for VGP safety measures, a generic line such as 'costs are by default included in our hourly unit rates' is not enough — it is not a price calculation and is treated as missing. Sending it in afterwards does not work: that is prohibited regularisation breaching equality among bidders.
Ask yourself
Two checks. (1) Did you win or lose UDN and is there still an annulment action pending against the same award? Read the dictum: does it say 'costs reserved' or 'applicant ordered to pay the costs'? If the second, and an annulment is pending, request a rectifying ruling within ten days. (2) Are you bidding on a contract whose specifications require 'on pain of absolute nullity' a separate price calculation for safety measures? Open chapter 7 or 8 of the VGP — there is usually a fill-in form there — and complete it with concrete figures per measure. A generic 'included in unit prices' line is NOT a price calculation and will cost you the bid.
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 →