Withdrawing your decision eight days before the hearing still costs you €920 in procedural fees
The Council of State declares SDS's suspension application moot because the Flemish Land Agency had already withdrawn its award decision — but still orders the contracting authority to pay the full €920 in procedural costs.
What happened?
On 24 April 2019, the Flemish Land Agency awarded the AMB/2018/6 contract for the appointment of a central court bailiff office. SDS, an unhappy bidder, filed an extreme-urgency suspension application on 21 May 2019. The hearing was scheduled for 27 June 2019 at 10.00 a.m. Eight days before that hearing, on 19 June 2019, the Flemish Land Agency withdrew its own award decision. At the hearing, the defendant therefore argued that the application had become moot. The Council formally agrees: the contested decision no longer exists, so the applicant has lost its interest. But then comes the twist. Chamber president Dierk Verbiest rules: 'Under the circumstances, costs — the role fee, the contribution, and the base procedural indemnity of 700 euros requested by the applicant — are to be borne by the defendant.' The decision reads paradoxically: 'The Council of State rejects the application' — followed by a cost order against the defendant for the role fee (€200), the contribution (€20), and the procedural indemnity (€700). Total: €920 in a case where SDS technically 'lost'. The reasoning matches what the French-speaking VIth chamber applied that same week in 245.076, 245.079 and 245.080: the disappearance of the contested act through withdrawal is a 'succédané d'annulation contentieuse' — a substitute for annulment. A contracting authority that withdraws is treated, for cost purposes, as the losing party.
Why does this matter?
For contracting authorities, this exposes a stubborn misconception. Many departments think that 'withdrawing fast once you've been sued' makes the case melt away — no annulment, no judgment, no damages. On the cost side, that's wrong. The Council treats withdrawal under pressure of a suspension application as an implicit acknowledgement that the contested decision was unsustainable. Three consequences follow. One: the applicant gets back the role fee (€200) and contribution (€20). Two: the base procedural indemnity (€700, or more for higher-value contracts) is awarded to the applicant. Three: in cumulative cases (parallel applications, intervening parties), the amounts add up fast. For bid managers this means an extreme-urgency application is also useful when the authority withdraws first: you recover your costs and build case law against an authority that doesn't motivate its decisions properly the first time.
The lesson
If you're a contracting authority withdrawing an award decision after an extreme-urgency application has been filed, expect to bear the procedural costs anyway. 'Saving' the case by withdrawing fast works on the annulment side — not on the cost side. To genuinely avoid costs, you must withdraw before any application is filed, or convince the applicant to drop the application and waive its costs.
Ask yourself
Filed an extreme-urgency application and the authority then withdraws? Explicitly request, in your final memorandum, the base procedural indemnity (€700, or the higher amount for contracts above the thresholds), the role fee, and the contribution. The Council awards these as standard under article 30/1 of the coordinated laws — but you must ask for them.
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 →