Withdraw your award decision after a successful suspension? You still pay the costs
The Council of State dismisses the annulment appeal against the award of a EUR 21.7M quay wall in Zeebrugge because the contracting authority had already withdrawn its award decision — but charges all procedural costs and lawyer's compensation to the Maatschappij van de Brugse Zeehaven.
What happened?
In early 2018 the board of the NV Maatschappij van de Brugse Zeehaven awarded the contract for the construction of a quay wall on the East side of the Boudewijnkanaal in Zeebrugge (tender 1 of 2017) to nv Artes Depret. Contract value: EUR 21,698,792.06 excluding VAT — a major work. The award decision was notified on 9 February 2018; the offer review report followed on 19 February. The joint venture NV Algemene Ondernemingen Soetaert + NV Jan De Nul, which did not get the contract, immediately turned to the Council of State with an extreme-urgency suspension request. By judgment 241,206 of 5 April 2018 that suspension was granted (suspension of the award decision of 26 January 2018; the request was rejected for the rest). The Maatschappij van de Brugse Zeehaven then withdrew its award decision: by board decision of 25 April 2018 — three weeks after the suspension. In the meantime, the joint venture had also filed an annulment appeal on 16 April 2018. By the time that appeal came to hearing (18 September 2018, before deputy chamber president Johan Bovin), the contested award decision no longer existed. Article 93 of the Royal Decree of 23 August 1948 on procedure before the administrative-litigation section allows the Council to declare an appeal devoid of object. Auditor Frederic Eggermont drafted his report accordingly, and the Council follows: the annulment appeal is moot due to the withdrawal of the contested decision. But — and this is the key point for bid managers — the costs are not lost. The Council places all procedural costs on the contracting authority: • Court fee: EUR 800 • Contribution: EUR 80 • Procedural compensation to the joint venture: EUR 1,400 Total: EUR 2,280 for the Maatschappij van de Brugse Zeehaven, plus its own legal fees and the time lost on a fresh award procedure for a EUR 21.7M contract. The rationale for the cost order: it is the contracting authority itself that, by withdrawing, made the procedure moot. The applicant party was forced to litigate in order to obtain the suspension.
Why does this matter?
This is the standard sequel to a successful extreme-urgency suspension: the contracting authority withdraws its award decision and reopens the procedure. For bid managers this means two things. First: a won extreme-urgency case does not automatically deliver you the contract — the authority can re-evaluate, and the same competitor may well win again (provided the original error has been fixed). But you do get a fresh chance to compete. Second: even if the annulment appeal is declared moot, you recover your procedural costs and lawyer's compensation. That is not full compensation (your actual legal fees are not fully covered), but it improves the bottom line of the litigation. Important: keep your annulment appeal alive even after a withdrawal — without that step you lose the cost order. For contracting authorities: after an extreme-urgency suspension, withdrawal is often the pragmatic choice (no further legal costs, fast restart with a new procedure), but you do pay the costs of the earlier procedure. Timely self-review before award is cheaper.
The lesson
If as a bid manager you win an extreme-urgency suspension and the authority withdraws its award decision before the annulment hearing: have your lawyer obtain an article-93 judgment placing procedural costs on the authority. Even without a substantive ruling you recover the court fee, contribution and procedural compensation. Do not expect the contract to be automatically awarded to you — the authority will restart, and you must apply or be re-evaluated. If as a contracting authority you have seen an award decision struck down at extreme urgency: withdraw it before further costs accrue, and build the fresh procedure around the legal cure indicated by the Council.
Ask yourself
Just won an extreme-urgency suspension? Confirm with your lawyer that (1) the authority will withdraw the contested decision (first signal: a letter or board decision within weeks of the suspension), and (2) your annulment appeal will be pursued to recover the procedural costs via article 93.
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 →