The contracting authority withdraws its award decision and still pays — a withdrawn act is a 'substitute for annulment'
The Council finds that Arcadis Belgium's appeal against the award of the Arlon mobility plan to TRANSITEC has lost its object because the Walloon Region withdrew its award decision on 4 May 2017, but nevertheless orders the Region to pay €700 procedural indemnity and €200 in other costs because the withdrawal constitutes 'a form of substitute for annulment'.
What happened?
On 19 April 2017 Arcadis Belgium sought urgent suspension and annulment of the Walloon Region's undated decision to award the contract for updating the municipal mobility plan of Arlon — governed by special tender specifications no. 02.01.01-116C89 — to TRANSITEC. The case was set for hearing on 9 May 2017. But on 4 May 2017, five days before the hearing, the defendant withdrew the contested decision and notified all bidders by registered letter. No bidder lodged an appeal against that withdrawal within the prescribed period, making it final. The Council applied article 30, §5 of the consolidated Council of State laws: when the contested act is withdrawn during the suspension proceedings such that there is no longer reason to rule, the Council can decide on both the suspension request and the annulment appeal in a single judgment — without requiring a separate continuation motion or related fee. Four points. One: the appeal has lost its object. Two: the withdrawal is a 'succédané d'une annulation contentieuse' — a substitute for annulment — so the Walloon Region must be considered the losing party under article 30/1, and Arcadis the prevailing party. Three: no element was put forward to reduce the basic procedural indemnity — Arcadis receives the basic €700. Four: article 67, §2, third paragraph of the Regent's Decree of 23 August 1948 provides that no increase in the indemnity is due where the contested act was withdrawn. The other costs of €200 were also charged to the Walloon Region. The confidentiality request became moot.
Why does this matter?
For bidders challenging an award via urgency proceedings, this ruling is reassuring: even when the contracting authority withdraws its decision before the hearing — a common tactical response to an urgent appeal — you don't lose the cost-recovery game. The Council treats withdrawal as a substitute for annulment, and the authority pays both the basic procedural indemnity and the other costs. The flip side for contracting authorities: simply 'taking back' the contested decision to dodge proceedings is not cost-neutral. Each withdrawal decision should factor in €900 payable to the applicant (€700 + €200), unless elements justify reducing the basic indemnity. Procedural tip for applicants: no continuation motion needed — the Council rules on suspension AND annulment in one judgment when art. 30, §5 applies.
The lesson
If the contracting authority withdraws your contested award decision before the hearing, stay the course — ask the Council to award you the basic procedural indemnity (€700) and the other costs (€200). The withdrawal is treated as a 'substitute for annulment' and you count as the prevailing party. For contracting authorities: a withdrawal sidesteps the substantive debate but not the financial sanction — factor it in before you withdraw your award after an urgent appeal.
Ask yourself
Has the contracting authority withdrawn the contested award decision after your urgent appeal? Then explicitly request the €700 procedural indemnity plus €200 in other costs — the Council awards them because withdrawal equals a 'substitute for annulment'. No increase because art. 67, §2, third paragraph of the Regent's Decree excludes it on withdrawal.
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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 →