Winning the suspension does not protect your award — De Vlaamse Waterweg withdraws anyway, and pays the costs
De Vlaamse Waterweg won the interim proceedings against Envisan/Jan De Nul over dredging works on the Beneden-Durme, but withdrew the award decision itself seventeen days later — making the annulment moot and shifting the costs onto the contracting authority.
What happened?
De Vlaamse Waterweg launched a works contract entitled 'Beneden-Durme at Waasmunster, Zele and Lokeren — maintenance dredging and renovation of GOG Potpolder IV' (specification AZZ-18-0004). A temporary commercial partnership of Envisan and Jan De Nul (THV) submitted a bid but, after re-evaluation on 23 November 2018, was excluded for 'substantial irregularity'. The contract went to DEME Environmental Contractors (DEC). The THV filed for extreme-urgency suspension and lost: by judgment 243.352 of 8 January 2019 the Council of State dismissed the application. The matter looked closed for De Vlaamse Waterweg — until the authority itself withdrew the contested decision on 25 January 2019, just seventeen days after the suspension judgment. By then the THV had already filed an annulment application, on 24 January 2019. The withdrawal makes that application moot under article 93 of the Regent's Decree of 23 August 1948. Formally the Council dismisses the appeal — nothing left to annul — but then puts the costs on De Vlaamse Waterweg: 400 EUR roll fee, 40 EUR contribution and 700 EUR procedural indemnity for the annulment (the cost of the lost suspension stays on the THV, as decided in the January judgment). Each applicant also recovers 220 EUR in over-paid roll fees. The judgment does not say why De Vlaamse Waterweg withdrew — presumably an internal weakness emerged during the procedure — but the cost mechanism is the takeaway here.
Why does this matter?
Authorities often assume a successful suspension defence makes their award bullet-proof. This case shows otherwise: even after a dismissed extreme-urgency application, a re-evaluation can still happen — and a voluntary withdrawal triggers a costs order in the annulment that was already pending. For bidders whose suspension was refused, this is a crucial signal: do not give up immediately, file the annulment application, because the authority may yet fold during the merits phase. Even if it does, the procedural indemnity covers at least part of the annulment cost.
The lesson
If your extreme-urgency suspension is dismissed, do not consider it the end — file the annulment application within 60 days of the award decision. Not only because the merits judge can overrule the interim judge, but because the authority sometimes discovers its own weak spot and withdraws. In that scenario you remain the prevailing party in the annulment and you collect a procedural indemnity — here 700 EUR for the bidder partnership. As a contracting authority, weigh a withdrawal after a won suspension carefully: it costs you both a new procedure and the bidder's annulment costs.
Ask yourself
Suspension dismissed? Have you nonetheless filed an annulment application within the 60-day window? Or are you now sitting without remedy while the authority quietly performs the contract — when you could just as well have waited for a possible withdrawal?
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 →