Request €840 in procedural costs, get €700: a withdrawal blocks any uplift above the base amount
After OTW withdrew its award to WOLF OIL, BELUB requested €840 in procedural costs — the Council awards only the base amount of €700 because article 67, §2(3) of the Regent's Decree excludes any uplift when the contested act is withdrawn.
What happened?
On 17 October 2018, the OTW (Opérateur de Transport de Wallonie) board awarded lot 2 of a supply contract — oils for ZF gearboxes on buses — to WOLF OIL CORPORATION of Hemiksem for €194,520 excluding VAT, or €235,369.20 including 21% VAT. The decision was notified by email that same 17 October and confirmed by registered letter on 19 October. BELUB, a competitor, filed a suspension application and obtained on 27 November 2018 judgment 243.048 ordering suspension. Three days later, on 30 November 2018, BELUB also filed for annulment. The pressure worked: on 12 December 2018, OTW withdrew its own award. On 31 December, all bidders received registered letters notifying the withdrawal — including notice of available remedies, their forms and time limits. No one filed an annulment against the withdrawal within the deadline. BELUB's case against the original award therefore lost its object — the Council confirms this formally and lifts the suspension. The most interesting passage concerns costs. BELUB had requested €840 in procedural indemnity under article 30/1 of the coordinated laws — the uplifted base amount applicable to contracts above a certain threshold. The Council reasons in two steps. First: the withdrawal of the contested act is a 'succédané d'annulation contentieuse'; OTW is treated, for cost purposes, as the losing party, BELUB as the winning party. Second, and there's the twist: article 67, §2(3) of the Regent's Decree of 23 August 1948 excludes any uplift above the base amount once the contested act has been withdrawn. BELUB therefore gets 'only' €700 (base amount) plus role fees of €400 and contribution of €40, totalling €1,140. OTW pays it all.
Why does this matter?
For an applicant who lost a substantial contract, the uplifted procedural indemnity is a meaningful financial argument: it can rise to several thousand euros for contracts above €250,000. This judgment teaches that a tactical withdrawal by the contracting authority blocks that uplift — the applicant falls back to the €700 base amount. For contracting authorities this is an argument to withdraw whenever you doubt the sustainability of your decision: you avoid an annulment judgment and you cap your cost exposure. For bid managers the message is the reverse: an extreme-urgency or annulment proceeding with a high-value contract becomes less lucrative on costs once the authority withdraws. That doesn't change the strategic value (the contract goes back to market), but it does change the financial outcome.
The lesson
As applicant: request the uplifted procedural indemnity in your application (based on the contract value), but expect to receive 'only' the €700 base amount once the authority withdraws. Build your strategy around the strategic gain (contract back to market), not around cost recovery. As authority: an early withdrawal is procedurally smart — it also caps your cost exposure.
Ask yourself
When the contested act is withdrawn: has the authority notified ALL bidders by registered letter, including the available remedies, forms and deadlines? If not — the withdrawal is not yet definitive and your case may still survive.
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 →