Want to plead 'we're a poor authority' to cut your costs order? Not without proof — and certainly not if you yourself consulted lawyers before withdrawing
The Council finds that INTERMÉDIANCE & PARTNERS' extreme-urgency appeal against two CENTR'HABITAT decisions (urgent extension of the previous bailiff contract and launch of a new specifications procedure) lost its purpose after withdrawal, but rejects CENTR'HABITAT's lengthy plea to cut the €700 base procedural indemnity to the €140 minimum — and awards the full €700 (€350 per applicant) plus €400 in other costs.
What happened?
On 8 February 2017, CENTR'HABITAT — a Hainaut social housing cooperative living mainly off Walloon subsidies — had awarded its bailiff services contract to SKWARA-DUPONT. On 10 May 2017 its management committee adopted a new resolution covering three things: (1) withdrawal of the 8 February award, (2) an 'urgent extension' of the previous bailiff contract because the Litigation cell could not be left without bailiff services, and (3) a decision to start 'analysing new principles for a specifications document taking the Council of State's observations into account'. INTERMÉDIANCE & PARTNERS and its director Bertrand Wambersy filed an extreme-urgency appeal on 31 May 2017 against the second and third sub-decisions — not the withdrawal itself. The hearing was set for 20 June. Five days before the hearing, on 14 June, CENTR'HABITAT also withdrew those two contested sub-decisions. The withdrawal was notified to all bidders by registered letter; no one appealed. The case lost its purpose. What makes the ruling interesting is what came next. CENTR'HABITAT pleaded at length for the €700 base procedural indemnity to be reduced to the €140 minimum, citing: (1) limited financial means living mostly on Walloon subsidies, with cost orders weighing heavily on its public service mission; (2) the absence of complexity — the alleged illegalities were obvious and the acts were withdrawn without discussion immediately after the appeal; (3) no need for the applicants to read or respond to a memorandum. Alternatively, an intermediate amount between €140 and €700. The Council demolishes each argument. On the financial straits: CENTR'HABITAT 'remains in default of establishing by any element whatsoever the financial difficulties it alleges' — and €700 is 'in any event very limited' for a contracting authority of its size. On the alleged simplicity: this is 'contradicted by the conduct of the opposing party itself' — it consulted a law firm before withdrawing, which itself informed the Council that withdrawal was being considered. On the alleged absence of significant work: the withdrawal occurred after the appeal was filed and did not exempt the applicants from appearing at the 7 November hearing — 'it cannot be disputed that significant duties had to be performed by the applicants' counsel, even though they did not have to read or respond to a memorandum'. The full €700 indemnity is awarded (split €350 per applicant) plus €400 other costs against CENTR'HABITAT.
Why does this matter?
For applicants this means the standard repertoire used by contracting authorities to chip away at your costs order — pleading financial straits, simplicity, ease for the opposing party — does not work without concrete proof. If you file an extreme-urgency appeal and the contracting authority then withdraws, you can count on the full €700 base indemnity plus other costs. For contracting authorities the inverse: 'we're a small social-economy entity' is not an automatic reduction ground — file actual numbers if you want to defend your budget, and remember that having consulted lawyers before withdrawing makes the case by definition 'not simple'. The Council's remark that €700 'remains very limited for a contracting authority of your size' is telling: this is a fixed indemnity that won't easily be cut.
The lesson
Want as a contracting authority to have the €700 base indemnity reduced to the €140 minimum? You must show three things: (1) your financial difficulties with figures and documents — bare assertion does not suffice; (2) the simplicity of the case — hard to argue if you yourself consulted a law firm before withdrawing; (3) absence of real work for the opposing party — hard to argue if they had to appear at the hearing. As applicant: routinely ask for the €700 base indemnity plus other costs and rebut any reduction arguments by reference to article 30/1, §2 of the coordinated Council of State Acts, which permits reduction only 'by specially reasoned decision'.
Ask yourself
Is the contracting authority pleading reduction of your procedural indemnity on grounds of 'limited means' or 'simplicity of the case'? Then ask: is there concrete budget evidence on file (annual accounts, subsidy overview)? Did the authority itself instruct lawyers before withdrawing? Did you have to appear at the hearing despite the withdrawal? Three yeses and a no — the chances of keeping the full €700 are 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 →