Withdrawing your annulment action five months after the hearing date: 900 EUR for the contracting authority
Dileoz brought the City of Vilvoorde before the Council of State on 15 September 2017 over a 36,980 EUR recruitment software contract awarded to A&S Solutions; after all briefs were exchanged and the audit report drafted, Dileoz withdrew on 6 February 2018 — and must pay 900 EUR in procedural costs to the City.
What happened?
The City of Vilvoorde tendered for the supply of a software platform supporting recruitment and selection: parametrisation, training and four years of rental. On 19 December 2016, the Mayor and Aldermen decided to award the contract to A & S Solutions BVBA for 36,980 EUR excl. VAT (44,745.80 EUR incl. VAT) — the 'economically most advantageous bidder' having regard to the award criteria. The same decision expressly refused to award to Dileoz. Dileoz waited to react. Only on 15 September 2017 — nine months after the award decision — did it bring an annulment action before the Council of State. That is unusual timing for a procurement file (the deadline for UDN is normally 15 days after notification, 60 days for annulment). The judgment does not explain why Dileoz only reacted then — possibly because the award decision was only later notified to Dileoz, or because they were waiting for a specific trigger. In any case, the procedure ran on. The City of Vilvoorde filed a defence brief. First auditor Jos Stevens drew up a report. The hearing was scheduled for 17 April 2018 at 11:00, before the XIIth chamber with Council member Pierre Barra. Then, on 6 February 2018 — two months BEFORE the hearing — Dileoz wrote to the Council of State withdrawing from the proceedings. The reason is not given in the judgment: Dileoz may no longer have had a strong case (in light of the audit report), there may have been a commercial settlement, or simply a re-prioritisation. The hearing of 17 April 2018 still took place, for procedural finalisation. Auditor Thomas Maes gave a concurring opinion. The Council notes the withdrawal and — in paragraph 4 — finds that 'in the given circumstances it is appropriate' to charge Dileoz with the procedural costs. The City had requested the basic procedural indemnity. Final decision: • Withdrawal noted. • Dileoz ordered to pay 200 EUR court fee + 700 EUR procedural indemnity = 900 EUR to the City of Vilvoorde. Note that here — unlike in the withdrawal judgments from the same month (241267, 241306) — the applicant bears the costs. That is logical: the applicant voluntarily ends its own procedure without the contracting authority conceding anything. The City of Vilvoorde withdrew nothing; its award decision stands.
Why does this matter?
This short judgment is a useful counterpart to the withdrawal judgments such as 241267 and 241306. There we saw how a contracting authority that withdraws its own decision bears the procedural costs — even if the case is formally declared moot. Here it is the reverse: the applicant withdraws its own action and bears the costs of the contracting authority. The symmetry is clear: whoever ends the procedure without a substantive ruling is treated as the 'losing party' for costs. For bidders considering bringing an action, two lessons. First: ask yourself in advance whether you really want and can go through the entire procedure. An action you let drop after a few months costs you 900 EUR plus your own legal fees. Second: timing matters. In this file, Dileoz waited nine months after the award decision. That is exceptionally late and points to a possible procedural weakness (deadline issue). Whoever waits, risks the strength of their pleas eroding before the case ever reaches the bench. For contracting authorities the message is reassuring: when the applicant withdraws, your award decision stands AND you receive the basic procedural indemnity. Mind you: ensure your lawyer expressly requests the indemnity in the defence brief. The Council notes 'the procedural indemnity of 700 EUR requested by the defendant' — if you do not request it, the Council does not award it on its own motion either. For strategic withdrawal: timing is everything. Withdrawing before the contracting authority's defence brief, the authority might not yet be able to request the indemnity because no substantive costs have been incurred. Withdrawing after the audit report (as Dileoz did) ties you to at least the 700 EUR indemnity plus your own court fee.
The lesson
If as an applicant you are considering withdrawing an annulment action: know that this costs you 900 EUR (200 EUR court fee + 700 EUR procedural indemnity to the contracting authority). If you want to withdraw, do so as early as possible in the procedure — preferably before the authority files its defence — to keep your cost position as favourable as possible. Ask yourself honestly, before bringing the action, whether you want and can substantively and commercially go through the whole procedure. For contracting authorities: have your lawyer expressly request the basic procedural indemnity in the defence brief — otherwise the Council will not award it on its own motion.
Ask yourself
You are considering withdrawing an annulment action against an award decision. Ask yourself three questions: (1) has the contracting authority already filed a defence brief and the audit office already drawn up a report? If yes, you are in for 900 EUR standard costs anyway. (2) is there a commercial or strategic opening (follow-up contract, another public contract with the same authority) that makes those 900 EUR worth it? (3) why are you actually withdrawing — do you no longer have a strong case after the audit advice? Acknowledge that internally too, and use that insight for future challenges.
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 →