Withdraw your contested award and immediately re-award to the same firm — legally allowed, but you pay the costs of the first action and trigger a second one
The Council of State holds that Illico's action has lost its purpose because the Haute Ecole Robert Schuman itself withdrew its contested award to Vending Euro Products on 18 June 2018 — even though the same instrument also re-awarded the contract to that same firm — and orders the school to pay €700 procedural cost award plus €220 court costs; meanwhile the re-award itself was also challenged and suspended.
What happened?
On 16 January 2018 the Haute Ecole Robert Schuman awarded its service contract — the supply of vending machines for drinks and snacks — to Vending Euro Products SA. The losing bidder Illico BVBA filed an annulment action with the Council of State on 15 March 2018, with a supplementary brief. On 21 June 2018 the contracting authority informed the Council that on 18 June 2018 it had taken a new decision withdrawing the contested award. In the same administrative instrument, on the same day, it re-awarded the contract to Vending Euro Products. Both decisions — the withdrawal and the re-award — were notified on 19 June 2018 to all bidders, with mention of the available remedies, forms and time limits, so the 60-day annulment period started running immediately. The re-award to Vending Euro Products did not stand. It was itself the subject of a suspension and annulment action, and by judgment no. 242,164 of 31 July 2018 the Council of State suspended that re-award. The school responded on 3 September 2018 by also withdrawing that re-award — and in the same act it confirmed once more the withdrawal of its original 16 January decision. No annulment action was lodged within the deadline against the 18 June withdrawal. It thus became final, and Illico's original action lost its purpose. On 9 November 2018 the VIth Chamber (David De Roy, acting president) ruled, on the basis of a report by auditor Elisabeth Willemart under article 93 of the general procedural rules. No ruling on the merits, but a ruling on costs and a clarification. The Council emphasises: it is irrelevant that the school confirmed the 16 January withdrawal again in its later 3 September decision — that second withdrawal is purely declaratory because the original decision had already disappeared through the 18 June withdrawal. On costs, the Council restates its settled case-law: the disappearance of the contested decision through withdrawal by the contracting authority is a 'substitute for an annulment in litigation'. For the costs the school is treated as the losing party; Illico is awarded €700 procedural cost award (base). The €20 Council Fund contribution under article 66, 6° of the Regent's Decree and the further court costs of €200 also fall on the school. Illico's request for confidentiality of its bid loses its purpose — its bid is simply returned to it.
Why does this matter?
For contracting authorities considering withdrawing a contested award and at the same time re-awarding to the same bidder, this judgment offers two insights. First, the tactic does work to make the original action lose its purpose, but you still bear the costs of that action. Second, you do not solve the underlying problem — if your original award decision had a serious motivation defect or a procedural irregularity, that flaw remains in the re-award and you trigger a second action, as happened here where the re-award was suspended by judgment 242,164 and then had to be withdrawn by you. The end result: you bear the costs of two proceedings, the contract is still not performed, and you are many months further down the road. For applicants the judgment confirms that cost recovery under article 30/1 also works when the contracting authority tries to 'salvage what it can' through withdrawal plus immediate re-award. Always expressly request the procedural cost award in your application, and do not forget the €20 Council Fund contribution.
The lesson
If, as a contracting authority, you withdraw your contested award and in the same act re-award to the same bidder: know that the original action will indeed lose its purpose, but you (1) bear the costs of that action and (2) probably trigger a second action against the re-award if you have not solved the underlying motivation defect or procedural error. Real correction means a fresh substantive evaluation — not a cosmetic re-award to the same firm.
Ask yourself
You are about to withdraw a contested award decision and want to re-award in the same act to the same bidder: have you (1) factored in that you will bear the costs of the pending action, and (2) actually solved the substantive problem that led to the action — or are you risking that the second award is suspended on exactly the same ground?
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 →