After a suspension, the contracting authority often simply withdraws the award — and the annulment claim becomes moot, but you still get your procedural costs
The municipality of Ans had awarded its external prevention service contract to PROVIKMO; after SPMT-ARISTA obtained a suspension, the municipality withdrew its award decision and the annulment claim became moot — but SPMT-ARISTA is treated as a 'successful party' and is awarded €700 in procedural costs plus €400 in other costs.
What happened?
In late 2017 the municipality of Ans (Liège) launched a service contract for an external occupational health and safety service (specifications no. 20170042). On 13 December 2017 the college of mayor and aldermen awarded the contract to VZW PROVIKMO. Notification reached SPMT-ARISTA on 18 December 2017. On 2 January 2018 SPMT-ARISTA filed an extreme-urgency application. On 23 January 2018 PROVIKMO, as awardee, applied to be admitted as intervening party. In judgment 240,653 of 2 February 2018, PROVIKMO was provisionally admitted as intervener, the award decision was suspended, and costs were reserved. On 5 March 2018 the municipality filed a 'request to continue the procedure' — meaning it wanted the annulment proceedings on the merits to continue. A month later it took a different route: on 5 April 2018 the college withdrew its own award decision of 13 December 2017. The withdrawal was notified by email on 11 April and by registered post on 12 April to both SPMT-ARISTA and PROVIKMO, with mention of remedies, forms and deadlines. Neither party filed an appeal against the withdrawal within the deadline. The Council of State, on 27 November 2018 presided by Nathalie Van Laer, finds that the withdrawal has become final and that the annulment claim is therefore moot. The suspension granted in judgment 240,653 is lifted (logically — there is no decision left to suspend). Then comes the procedurally interesting part: article 30/1 of the laws on the Council of State entitles a 'successful party' to procedural costs. Since the municipality voluntarily withdrew its decision after SPMT-ARISTA obtained a suspension, SPMT-ARISTA is treated as a successful party. Result: €700 procedural cost award against the municipality, plus €400 in other costs against the municipality and €150 against PROVIKMO as intervening party.
Why does this matter?
Many extreme-urgency applications end not in an annulment but in this scenario: the suspension is granted, the contracting authority withdraws its decision, and the annulment claim becomes moot. For bidders: a suspension on its own is often enough to flip the outcome — not always to your favour (the procedure can simply be redone), but at least out of the winning position of the original awardee. Crucial: even when the case is declared moot, article 30/1 entitles you to procedural costs (€700) and a contribution to other costs (€400) against the contracting authority, plus possibly a share against the intervening party. For contracting authorities: after a suspension, withdrawal and restart is often quicker than a full annulment trial on the merits — but you'll automatically be treated as the losing party for costs. It's no 'free' way out.
The lesson
As applicant after a suspension: stay alert. The contracting authority can withdraw its decision and restart the procedure — usually with revised documents or a new evaluation. Your 'win' is provisional and you must reassess the new decision. In any event, request procedural costs under article 30/1 — even when the case becomes moot, this is not automatic. As contracting authority: after a suspension, withdrawal plus a new decision is usually faster than an annulment trial, but you will pay the other side's procedural costs. Factor that into the decision.
Ask yourself
You are the applicant. You obtained an extreme-urgency suspension. Four months later the contracting authority withdraws the award and notifies you of the withdrawal with mention of remedies. Two questions: (1) Do you want to challenge the withdrawal itself (only meaningful if the withdrawal is adverse to you — usually not, except for specific damages considerations)? (2) Did you explicitly request a €700 procedural cost award in your merits filings? If not, do so before the hearing. Without an express request the Council awards no costs.
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 →