Intervene to defend an award that's later withdrawn? Then you share in the costs — €150 on your name
The Council finds that INSTANCES' annulment appeal against the award of lots 'public procurement law' (€16,528.93 excl. VAT) and 'public/administrative law on urban planning' (€33,057.85 excl. VAT) to lawyer Marie Bourgys by the city of Ottignies-Louvain-la-Neuve lost its purpose after withdrawal, awards INSTANCES the €700 base procedural indemnity — and orders €200 in other costs against the city plus €150 against intervening lawyer Bourgys.
What happened?
The city of Ottignies-Louvain-la-Neuve had divided its legal services contract into four lots. On 3 March 2016 the city council decided to award lot 3 (Public procurement law) for an estimated €16,528.93 excl. VAT (€20,000 incl.) and lot 4 (Public and administrative law on urban planning) for €33,057.85 excl. VAT (€40,000 incl.) to lawyer Marie Bourgys from Louvain-la-Neuve, on the basis of the economically most advantageous offer. INSTANCES — a law firm that had also bid — filed an annulment appeal on 10 June 2016 against the award to Bourgys and the implicit decision not to award lots 3 and 4 to it. On 29 July 2016 Bourgys requested admission as intervening party — as the awardee she had standing. An order of 29 August provisionally accepted that intervention. On 1 September 2016 — two months after the appeal — the city council decided to withdraw the award of lots 3 and 4 to Bourgys. The city failed to provide proof of registered notification to Bourgys, but Bourgys herself confirmed in her mémoire en intervention of 31 October 2016 that she had been 'explicitly informed' of the withdrawal. From that recognition the time limit for any appeal against the withdrawal began running — and as more than four months and sixty days had passed without Bourgys filing an appeal, the withdrawal became final. INSTANCES' appeal accordingly lost its purpose. For costs the Council applied the familiar reasoning: the withdrawal is a 'succédané d'une annulation contentieuse', INSTANCES is the prevailing party, the city the losing party. €700 base indemnity for INSTANCES against the city. What makes the ruling distinctive is the treatment of other costs: €350 total, but split between the losing parties — €200 against the city and €150 against Marie Bourgys. The Council reasoned: 'the withdrawal of the contested decision likewise justifies that other costs be borne by the opposing party, except those relating to the intervention which are left to the intervening party'. In other words: the intervening party pays the costs of her own intervention, even though her position falls due to withdrawal rather than annulment.
Why does this matter?
For lawyers and other awardees whose award is being challenged this is a warning: as soon as you intervene to defend your award, you are liable for the costs of that intervention — even if the contracting authority itself later decides to withdraw. It is not the contracting authority that bears your intervention costs, but you. For the contracting authority this is rather favourable: in the combination 'award challenged + intervenant joins + withdrawal' the cost risk is shared rather than borne entirely by it. For applicants finally: it is useful to know that your procedural indemnity is always paid by the contracting authority, but your 'other costs' can be split — meaning you can hold both opposing parties liable.
The lesson
Are you the awardee of a challenged award and considering intervening? Then factor in that you pay the costs of your own intervention, even if the contracting authority eventually withdraws the award. Intervention is not 'free' defence — there is a price tag, also at a procedural end without annulment. For applicants challenging an award: claim costs against both the contracting authority and the intervening party — costs are split by source of work (the procurement itself vs the intervention).
Ask yourself
Is an intervening party joining on the side of the contracting authority? Then state in your submissions that other costs should be split — those of the main procedure against the contracting authority, those of the intervention against the intervening party. That split is not automatic — you must ask for it.
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 →