Contracting authority withdraws its decision before the extreme-urgency hearing: application 'rejected' but you still recover 920 euros
OVAM withdraws the contested award decision eight days before the hearing after Terra Engineering & Consultancy files an extreme-urgency application; the Council of State rejects the application as moot but orders OVAM to pay roll fee, contribution and 700 euros procedural indemnity.
What happened?
OVAM organises a framework agreement at the end of 2018 for services on VOCl contamination (volatile organochlorines) at private properties — three phases: descriptive soil survey (BBO), soil remediation project (BSP) and soil remediation works (BSW), specifications RO171201. On 30 November 2018, OVAM takes two related decisions: it declares the offer of NV Terra Engineering & Consultancy (TEC) substantially irregular and excludes it from further evaluation, and awards the framework agreement to NV Witteveen+Bos Belgium. On 22 January 2019, TEC files an extreme-urgency application. Witteveen+Bos files an intervention request on 28 January. The hearing is scheduled for 5 February 2019. But before the hearing, OVAM takes a new decision on 30 January 2019: the contested award decision is withdrawn. The application loses its object — there is nothing left to suspend. On 7 February 2019, acting president Johan Bovin rejects the application — formally a rejection because the case has become moot, or at least because TEC has lost its interest. The decisive question is then: who pays? The Council applies the standard fairness rule: because OVAM itself withdrew the contested decision — implicitly acknowledging a defect — OVAM is ordered to pay the costs. TEC recovers the 200 euro roll fee, the 20 euro contribution and the 700 euro basic procedural indemnity, totalling 920 euros. The intervention costs Witteveen+Bos the 150 euro roll fee at its own expense. The practical result: the framework award is dead, OVAM must redo the procedure or take a fresh reasoned decision, and the bidder who 'formally lost' has actually recovered its costs.
Why does this matter?
For bidders: a withdrawn decision feels like a defeat ('my application has been rejected!'), but this is a misunderstanding. On the merits you have won: the contested decision is gone, the contracting authority must decide again, and your procedural indemnity is recovered. For contracting authorities: withdrawing a contested decision is a legitimate exit, but not a free one. Whoever withdraws implicitly admits a defect and therefore bears the costs. The real risk lies in what comes next — a renewed award can be challenged again, and a second extreme urgency on the same file makes a judge more suspicious. And a frequently overlooked detail: an intervening party who 'sides with' the contracting authority can end up bearing the intervention roll fee (150 euros) when the contracting authority withdraws — the contracting authority does not automatically reimburse this.
The lesson
If you have an extreme-urgency application pending and the contracting authority withdraws before the hearing: treat that as a win. Expressly request the procedural indemnity (700 euros base) in your application, and do not refuse a 'rejection' where the contracting authority is ordered to pay costs — that is the outcome you want. As contracting authority: weigh, before withdrawing, whether you can defensibly redo the award. Withdrawing to dodge the extreme urgency buys time, but the second decision must be substantively stronger, otherwise you have two losses instead of one.
Ask yourself
If you have filed an extreme-urgency application and the contracting authority withdraws a few days before the hearing: have you expressly requested a procedural indemnity of 700 euros in your application? If not, the Council may simply split the costs between the parties.
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 →