The contracting authority withdraws five days before the hearing — and itself acknowledges that 'the arguments in the appeal cannot be contested'
The Council stays the proceedings and adjourns sine die after CAHC withdraws — two days before the extreme-urgency hearing — its award of the architect contract for a Stoumont/Trois-Ponts retirement home, citing 'arguments in the appeal that cannot be contested' — a textbook example of how an extreme-urgency appeal makes a contracting authority fold without any merits ruling.
What happened?
On 21 September 2017 the board of CAHC — a Hainaut intermunicipal — awards its 'full project author' contract for the construction of a retirement and nursing home in Stoumont (105 beds, 25 service-residence units and a 5-place day care centre) plus 50 service-residence units in Trois-Ponts to the temporary association Altiplan scrl – Creative Architecture sprl – B.E.L. sa. The same day CAHC decides not to retain the bid of THV Résidence HQE (Studio Architects VK + SIA) 'because of an irregularity'. On 6 October 2017 Studio Architects VK and SIA file an extreme-urgency appeal against both sub-decisions — the award to Altiplan and the implicit rejection of their own bid. The case is set for 26 October 2017, then moved to 27 October 2017 at 9:45. On 25 October 2017 — two days before the hearing — CAHC takes the initiative: by deliberation it withdraws the contested award decision 'in light of the arguments in the appeal that cannot be contested'. No explanation, no rebuttal — the authority folds without conditions. The appeal against that decision loses its purpose. But because a withdrawal is not immediately final — a third party can challenge the withdrawal itself within the ordinary appeal window — the Council cannot yet declare the case closed. It therefore stays the proceedings and adjourns sine die. Costs are reserved. One particular note: the applicants had filed their own bid as exhibit 7 'on a confidential basis'. Since the appeal is not heard on the merits, the Council finds it unnecessary at this stage to disclose it — and provisionally maintains confidentiality. Case A.223.475/VI-21.099 thus formally remains pending, but the contested award to Altiplan is effectively gone.
Why does this matter?
For applicants considering an extreme-urgency appeal this is the scenario you hope for: the authority reads the appeal, consults its lawyer, sees no defence and withdraws before the hearing. No battle of arguments, no risk of an unfavourable prima facie ruling — just a clean slate and a chance to have the regularity assessment redone, properly this time. CAHC's price: €200 court fee and (presumably later) a procedural indemnity plus its own legal fees. For unsuccessful bidders waiting on the sidelines: know that a regularity decision can be shaken loose as soon as your lawyer reviews the specifications and the reasoning. A motivation 'because of an irregularity' without further precision is a red flag — if the authority cannot identify which specific clause was breached and why it is substantial, the appeal is the kind that as a rule is not contested but withdrawn. For contracting authorities finally: a self-initiated withdrawal 'in view of incontestable arguments' is procedurally correct and costs less than a lost suspension order. But don't waste the withdrawal: if you re-award, motivate the regularity of ALL bids in detail — otherwise expect a second appeal from the same opponent.
The lesson
If the contracting authority rejects your bid 'for an irregularity' without specific reference, don't complain immediately — first request the reasoned decision (article 8 Public Procurement Remedies Act 17/06/2013) and review with your lawyer which specific provision was allegedly breached and whether it qualifies as 'substantial' under article 95 of the Award Royal Decree. If the motivation is vague or the applied provision contestable, file an extreme-urgency appeal: in a substantial share of such cases the authority itself withdraws before the hearing. Plan the timing carefully — you have 15 days from the reasoned notification (article 23 Remedies Act) and the extreme-urgency procedure typically takes another 3-4 weeks before the hearing.
Ask yourself
Did I receive an award decision with vague reasoning ('your bid is irregular due to a formal defect', 'your bid does not meet the specifications') without reference to a specific specifications clause AND an explanation why that constitutes a substantial irregularity? Two tests: (1) could a third reader identify which clause was breached? (2) is there case-law qualifying that provision as substantial? Both doubtful — the basis for an extreme-urgency appeal is in place, and the chance of withdrawal before the hearing is real.
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 →