Withdrawing an award decision to dodge an extreme-urgency procedure — and still paying the costs
When a contracting authority withdraws its contested award decision during a suspension procedure and that withdrawal becomes final, the Council of State holds that the application has lost its purpose, but still orders the authority to pay 1,700 EUR in procedural costs because the withdrawal acts as a 'substitute for an annulment'.
What happened?
On the Nantimont motorway parking area along the E411, SOFICO (the Walloon motorway operator) wanted to build and operate a wind turbine through a 20-year concession. Six bidders submitted offers. On 27 October 2017 (notified on 7 November 2017), SOFICO awarded the concession to the temporary association SAMEOLE — WANTY — COSELOG, based on tender specification SOF-16-EOLE (as amended on 13 October 2016). Five other bidders — BELGIAN ECO ENERGY, LUCEOLE, COURANT D'AIR, MOBILAE and VENTS DU SUD, jointly forming the temporary association EOLUX — disagreed and on 23 November 2017 brought extreme-urgency proceedings before the Council of State. They asked not only for suspension but also for a provisional measure: an order prohibiting SOFICO from notifying the award to SAMEOLE-WANTY-COSELOG, on penalty of EUR 250,000 per breach. In a first ruling (no. 240.212 of 15 December 2017), the Council stayed proceedings. That same day — 15 December 2017 — SOFICO took a new decision WITHDRAWING its award. The withdrawal was notified on 22 December 2017 by registered mail to SAMEOLE-WANTY-COSELOG, indicating the available remedies and time limits. SAMEOLE-WANTY-COSELOG took no action. They did not file an annulment application against the withdrawal within the 60-day deadline. The withdrawal therefore became final. With the contested award gone, EOLUX's original application had lost its purpose. Logical conclusion: close the file, each side bears its own costs. But that's not how the Council reasoned. It called the withdrawal 'a form of substitute for a contentious annulment'. In other words: the contracting authority itself did what the Council would have had to do. That makes SOFICO the 'losing party' under article 30/1 of the coordinated Council of State Acts, and EOLUX the party 'having obtained satisfaction'. Result: SOFICO was ordered to pay a procedural indemnity of 700 EUR (split between the five applicant companies, i.e. 140 EUR each) plus 1,000 EUR in further costs. Total: 1,700 EUR for SOFICO.
Why does this matter?
For contracting authorities facing an extreme-urgency procedure, this is an essential ruling. The reflex of quickly withdrawing a contested award to short-circuit the procedure — buying time to redecide — is appealing but not free. The Council does not treat such a withdrawal as a neutral procedural cleanup. It sees it as a 'substitute for annulment': the authority implicitly admits its initial decision could not stand. That has three consequences. First: procedural costs are on you. Expect the statutory procedural indemnity (in this UDN case 700 EUR, multiplied if there are several applicants) plus the other costs. In this file, 1,700 EUR for one extreme-urgency case — modest, but the principle matters. Second: the withdrawal must become final to procedurally close your 'loss'. SOFICO followed the right path: the withdrawal decision was sent by registered mail to the awarded party, with mention of remedies. SAMEOLE-WANTY-COSELOG could still have challenged it — if they had, the case would have gone in a very different direction. The withdrawing authority must therefore plan for a 60-day window during which the awarded party can still react. Third: for bidders running a UDN and seeing the authority withdraw fast, this is a major plus. You don't just win on the merits, you also recover your costs. Don't throw it away — explicitly ask for the procedural indemnity and costs in a 'note de liquidation des dépens'. Otherwise the Council cannot grant them. For awarded parties (the winners), there is a warning too: if the authority withdraws your award after a competitor files a UDN and you do nothing within 60 days, the withdrawal becomes final and you lose the contract — not only in fact but also in law. To keep the contract, you must challenge the withdrawal yourself.
The lesson
If you are a contracting authority considering withdrawing a contested award: know that this procedurally positions you as the 'losing party'. Factor in the procedural costs upfront (procedural indemnity + dépens). Notify the withdrawal correctly by registered mail to the originally designated party, with mention of remedies — otherwise the withdrawal stays challengeable and you don't know when it becomes final. For bidders winning a UDN through such a withdrawal: explicitly request the procedural indemnity and costs in a 'note de liquidation' — otherwise the Council won't grant them on its own motion.
Ask yourself
Your contracting authority is considering withdrawing an award decision after a UDN procedure has been brought. Have you (1) factored in the financial impact of procedural costs (procedural indemnity × number of applicants + dépens), (2) prepared a procedurally correct withdrawal decision to be served on the originally designated party with mention of remedies, and (3) planned to procedurally close the case after the 60-day deadline?
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 →