Withdrawing the award one day before the hearing: case dismissed, but the hospital pays 920 EUR in costs
AZ Sint-Jan Brugge-Oostende withdraws on 18 April 2018 — the day before the extreme-urgency hearing — its award to Gerechtsdeurwaarders BTO for the amicable collection of patient invoices; the Council of State holds the application has lost its purpose but orders the hospital to pay 920 EUR in costs and the intervening bailiffs to pay 150 EUR in court fees.
What happened?
AZ Sint-Jan Brugge-Oostende, an autonomous care hospital, launched a public tender for the amicable collection of unpaid patient invoices — lot 1. On 21 March 2018, the board of directors decided to award the lot to bv cvba Gerechtsdeurwaarders Brugge-Torhout-Oostende. EOS Contentia Belgium, a specialised collection firm, disagreed and brought extreme-urgency proceedings before the Council of State on 4 April 2018. The hospital filed a brief. On 11 April 2018, Gerechtsdeurwaarders BTO requested leave to intervene — logically, since they had an interest in the award standing. The hearing was scheduled for 19 April 2018 at 10.30 a.m. ONE DAY BEFORE — on 18 April 2018 — the AZ Sint-Jan board took a new decision withdrawing its own award. Little remained to be ruled on at the hearing: with the contested decision gone, the application had 'lost its purpose, or at least the applicant had lost its interest in the application'. The intervention by Gerechtsdeurwaarders BTO was nonetheless allowed (they benefited from the contested decision and had an interest in dismissal). The key passage is in paragraph 5 on costs. The Council holds that 'in the given circumstances it is appropriate' to charge AZ Sint-Jan with the costs — translation: you withdrew your own decision at the last minute, so you pay for the procedure you caused. EOS Contentia had requested the basic procedural indemnity, which was not contested. Final verdict (Council member Pierre Barra, with concurring opinion from auditor Frederic Eggermont): • Intervention by Gerechtsdeurwaarders BTO allowed. • Application dismissed (loss of purpose). • AZ Sint-Jan ordered to pay: 200 EUR court fee + 20 EUR contribution second-line legal aid fund + 700 EUR procedural indemnity = 920 EUR to EOS Contentia. • Gerechtsdeurwaarders BTO ordered to pay 150 EUR court fee for the intervention.
Why does this matter?
Two lessons from this short but instructive judgment. First for contracting authorities: a last-minute withdrawal — the day before the extreme-urgency hearing — is not seen by the Council as a clever procedural escape, but as an implicit admission that your decision could not stand. You then become the 'losing party' for the procedural costs, even if the application itself is 'dismissed' rather than 'granted'. Here it cost AZ Sint-Jan 920 EUR — a modest sum, but the signal matters. With multiple applicants this rises quickly (see e.g. judgment 241693, where SOFICO paid 1,700 EUR to five applicants jointly). Second lesson for intervening parties: if you intervene to defend an award and the authority then withdraws its decision, you are stuck with your own court fee (150 EUR here). That is the litigation risk of intervention: you have something to lose in the market, and you pay to defend it. For bidders bringing UDN proceedings: do not forget to expressly request the procedural indemnity. EOS Contentia did so correctly ('requested and uncontested basic procedural indemnity') and got 700 EUR. The Council does not award it on its own motion. Note also: here the Council 'dismisses' the application for loss of purpose, while in comparable judgments (241693) it says the application has 'lost its purpose'. The wording difference does not change the cost order — the Council treats both variants as 'authority is the losing party' when it withdraws its own decision.
The lesson
Do not withdraw an award decision the night before a UDN hearing hoping to escape cheaply. The Council of State will charge you with the costs anyway — that is the standard pattern. Factor in upfront: 200 EUR court fee + 20 EUR contribution + 700 EUR procedural indemnity per applicant. If you are considering withdrawal, do it as soon as possible after receiving the application, not as a last-minute escape. And if you are an intervening party watching your award evaporate by withdrawal: know that you bear your own court fee (150 EUR for an intervention in UDN).
Ask yourself
You are a contracting authority considering withdrawing your award after a UDN has been brought. Have you (1) calculated that you will pay 920 EUR in costs to the applicant anyway (court fee + contribution + procedural indemnity), (2) a withdrawal decision ready to be properly served on the originally designated party, and (3) a plan B to relaunch or re-examine the procurement? Without those three elements, withdrawal is not a solution but only delay.
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 →