First suspended, thirteen months of silence, then withdrawn anyway: the Port of Antwerp pays 2,200 EUR for two years of litigation
The Council of State had already suspended on 22 November 2016 the award of dredging works in the 4th Port Dock to Martens en Van Oord; the Port of Antwerp waited until 18 December 2017 to withdraw the decision itself — and now bears 2,200 EUR in costs for both the extreme-urgency and the annulment procedure.
What happened?
The Port of Antwerp tendered, under specification B10343, the 'Deepening dredging works for the channel of the 4th Port Dock'. On 3 October 2016, the executive committee decided to award the contract to the Dutch firm bv Martens en Van Oord Aannemingsbedrijf — not to the Belgian temporary association 'Verdieping H4H' of Jan De Nul and Dredging International. The award decision was notified by registered letter on 6 October 2016. Jan De Nul and Dredging International immediately resisted. First in extreme urgency: on 22 November 2016 the Council of State (judgment no. 236,508) granted the UDN suspension — the award to Martens en Van Oord was suspended, the rest of the application dismissed. Then on 2 December 2016, they filed an annulment action against the same award. And then for thirteen months... nothing happened. The Port left the suspended award in limbo without withdrawing or replacing it. The annulment procedure ran on: the Port filed a defence brief, the applicants a reply brief, the intervening party Martens en Van Oord its own brief. Auditor Ines Martens drew up a report under article 93 of the general procedural rules. Then, on 18 December 2017 — over a year after the suspension — the Port finally withdrew the contested award. The hearing of 17 April 2018 (the case being before the XIIth chamber with Council member Pierre Barra) was no longer about the merits, but about what remained: the contested decision was gone from the legal order, and with it the implicit refusal to award to Jan De Nul / Dredging International. The Council applies article 93 of the Royal Decree of 23 August 1948: the application has lost its purpose and become 'pointless'. But — exactly as in the UDN judgments on withdrawals (see 241267, 241693) — the Port becomes the losing party for procedural costs. The applicants had after all prevailed through the withdrawal itself. Final decision (auditor Thomas Maes had given a concurring opinion): • Application dismissed (loss of purpose). • Port ordered to pay costs of both UDN and annulment: 800 EUR court fee + 1,400 EUR procedural indemnity = 2,200 EUR to the temporary association. • Martens en Van Oord ordered to 150 EUR court fee for the intervention. Note: 1,400 EUR procedural indemnity = 700 EUR × 2 procedures (basic indemnity for both UDN and annulment). And 800 EUR court fee is high: it covers court fees for both UDN (200) and annulment (200), separately for each applicant company (× 2).
Why does this matter?
This judgment illustrates the cost pattern that builds up when a contracting authority keeps stalling after a suspension. The Port of Antwerp had a UDN suspension on its hands as of 22 November 2016; from that moment on, the award decision was 'in the freezer'. The reasonable response would have been: take a new award decision based on the deficiencies identified in the suspension judgment, or withdraw the contested decision and start over. Instead: thirteen months of silence. The annulment procedure ran on, all parties exchanged briefs, the audit office wrote a report — all costs that ultimately had to be borne by the Port. For contracting authorities this is a warning: 'sitting' on a suspension until annulment is finally heard is not a free option. You build up double procedural costs (UDN + annulment), and you leave legal uncertainty around the file. When you eventually withdraw, you bear the full bill. In this file, 2,200 EUR — modest in absolute terms, but exemplary of the mechanism. For bidders who win UDN proceedings, the message is: do not stop there. File a parallel annulment action. That gives you (1) the certainty that the matter will be heard on the merits, and (2) a second procedural indemnity on top of the UDN one, should the authority ultimately withdraw. In this file, procedural costs for the Port were double what a pure UDN track would have produced. For Dutch and foreign contractors (such as Martens en Van Oord here) there is also a lesson: applying for intervention to defend your award costs you a court fee (150 EUR), and you lose that cost as soon as the authority itself withdraws — regardless of the substantive quality of your bid. Whether intervention still pays off when the authority is already wobbling is a litigation decision in itself.
The lesson
If as a contracting authority you are confronted with a UDN suspension: do not leave the suspended award decision in the freezer for months on end. Within a reasonable time, take either a new reasoned award decision (based on the indications from the suspension judgment) or a formal withdrawal decision. Silence is not a strategy — the annulment procedure runs on, procedural costs add up, and you eventually bear them all. For bidders: after a successful UDN ALWAYS file a parallel annulment action — it costs little extra, ensures procedural progress, and doubles your procedural indemnity in case of later withdrawal.
Ask yourself
Your contracting authority is dealing with a UDN suspension and considering what to do next. Ask yourself three questions: (1) is there a reasonable timeframe (say three months) within which you can replace the suspended decision with a new reasoned decision, or formally withdraw? (2) is there a parallel annulment action against the same decision that is generating costs in the meantime (briefs, audit report, hearing)? (3) have you calculated that a later withdrawal will leave you with both UDN costs and annulment costs — about 2,200 EUR per applicant at standard rates? If you do not act on (1) within three months, you pay the price for the 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 →