Suspension granted, then the contracting authority withdraws — the suspension must be lifted, but the authority still pays €900
The Council of State lifts its earlier suspension of the award to Lambert Frères/Deumer/Mathieu because Bastogne itself withdrew the contested decision and no annulment action followed, but still orders the city to pay €700 procedural cost award plus €200 court costs — withdrawal remains a 'substitute for an annulment in litigation'.
What happened?
On 29 December 2017 the city of Bastogne awarded road works for the Rue de Neufchâteau — resurfacing and pavements under Municipal Investment Plan 2017-2018, plus partial sewerage under PIC 2013-2016 — to the temporary association of Lambert Frères, Deumer and Mathieu, based in Bertogne. The losing bidder Serge Englebert BVBA filed an extreme-urgency suspension request on 12 January 2018. By judgment no. 240,679 of 7 February 2018 the Council of State suspended the award decision. Nine days later, on 16 February 2018, the city itself adopted a new decision withdrawing the contested award. From that moment a clock started running: to consolidate her provisional victory, Englebert should have lodged an annulment action against the original (now withdrawn) decision — with the same pleas that justified the suspension. Englebert did not. Under article 17 §4, third paragraph, of the coordinated laws on the Council of State, a suspension must then be automatically lifted 'where it appears that no annulment application invoking the pleas that justified it has been lodged within the period laid down in the procedural rules'. On 9 November 2018 the VIth Chamber sitting in summary proceedings (David De Roy, acting president) formally recorded this automatic lifting. But the city did not escape costs. The Council restates that withdrawal of the contested award by the contracting authority is a 'substitute for an annulment in litigation'. For the costs the city is treated as the losing party and Englebert as the winning party. Moreover — the Council expressly adds — it is precisely the contracting authority's withdrawal that explains why Englebert lodged no annulment action after the suspension. The Council awards Englebert a €700 procedural cost award (base) and €200 court costs, both to be paid by Bastogne.
Why does this matter?
For contracting authorities that have just been hit with a suspension, this is an important judgment. The automatic lifting under article 17 §4 paragraph 3 looks attractive: 'if the applicant lodges no annulment action, the suspension lapses by itself'. Indeed — but that does not release you from the procedural costs. The combination 'first suspension, then withdrawal by the contracting authority' is, for the Council, a double confirmation that the authority was substantively wrong: otherwise the suspension could not have rested on a serious plea, and the authority would have had no reason to withdraw. The procedural cost award of €700 (base) and the court costs (€200 here, without a Council Fund contribution because it was not liquidated in this procedure) follow as standard. For applicants: after a suspension you can leave the case 'at this stage' and still recover your costs — provided you expressly requested the procedural cost award in your application.
The lesson
If, as a contracting authority, you have been hit with a suspension judgment and you choose to withdraw your award rather than fight the annulment proceedings: know that the law will indeed lift the suspension when the other side files no annulment action, but you will still bear the procedural costs. Withdrawal remains a 'substitute for an annulment' and you will pay at least €700 procedural cost award plus court costs. For the applicant: even if you do not technically secure annulment, the Council expressly recognises that the withdrawal vindicates you — and explains why no annulment action was needed.
Ask yourself
Your award was suspended and you are considering simply withdrawing the contested decision rather than fighting the annulment proceedings: have you budgeted the other side's procedural cost award (€700 base) and court costs (€200-€800)? And as applicant: did you expressly request the procedural cost award in your original application?
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 →