A withdrawal after filing works in your favour — but only if you actually claim costs at the hearing
Ghent University Hospital awarded a framework agreement for endoscopes to Olympus, Onis filed an extreme-urgency suspension, the hospital quickly withdrew the award itself — and because Onis told the court at the hearing that it was not claiming costs, the de facto winner ended up paying its own EUR 220 bill.
What happened?
On 26 February 2019, the Management Committee of Ghent University Hospital awarded a framework agreement for the supply, installation and commissioning of endoscopes for the gastroenterology and hepatology department to Olympus Belgium nv. Onis nv, which had also bid and lost, filed an extreme-urgency suspension with the Council of State on 20 March 2019. The hearing was set for 5 April. Before that date, on 25 March 2019, the Management Committee withdrew the award decision itself. The application was therefore moot — there was nothing left to suspend. The parties still appeared at the 5 April hearing. When the matter of costs came up, counsel for Onis (advocate Sophie Bleux) expressly stated that the applicant was not claiming costs. President Dierk Verbiest of the XIIth chamber drew the logical conclusion: he dismisses the application for being moot and orders Onis — the party that effectively got what it wanted — to pay its own procedural costs of EUR 200 roll fee and EUR 20 contribution. No procedural indemnity for either side, because none had been requested. Onis gets its way (the award is gone), but pays EUR 220 for the privilege.
Why does this matter?
The Council of State does not award costs of its own motion — you have to claim them. Many bidders and their counsel assume that an authority that withdraws after a suspension is filed 'automatically' carries the costs. That is wrong. If you tell the court at the hearing that you are not claiming costs (out of courtesy, to preserve the relationship, or by mistake), the default rule kicks in and the applicant pays its own roll fee and contribution. For contracting authorities this is conversely a tactical opening: a quick withdrawal can limit cost exposure if the other side is not paying attention.
The lesson
If you file an extreme-urgency suspension and the authority withdraws the contested decision before or during the hearing, always expressly claim costs — at least the roll fee (EUR 200 for extreme-urgency at the time), the contribution (EUR 20) and the procedural indemnity (EUR 700 at the time) against the authority. If you don't, you carry the bill yourself even though you effectively won. It costs nothing to ask and can save you EUR 900+.
Ask yourself
Your lawyer is at the hearing of an extreme-urgency suspension that has become moot through a withdrawal. Has he or she expressly claimed roll fee, contribution AND procedural indemnity against the authority? Or — out of courtesy or routine — said 'no costs claimed'?
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 →