In a joint procurement the costs follow the actual contracting authorities — not those who only provided 'technical assistance'
The Council of State holds that BEDIMO's urgent suspension request against the award of office furniture for PEREX 4.0 is moot after withdrawal of the contested decision, dismisses the Walloon Region from the case (it provided only technical assistance), and orders the two real contracting authorities — SOFICO and the Belgian State — to share the €920 procedural costs equally.
What happened?
On 14 December 2018 SOFICO (Walloon infrastructure financing company), in a joint procurement with the Federal Police, awarded a contract for office furniture for the Walloon traffic centre PEREX 4.0 in Daussoulx (CSC 01.07.07-18G889) to sprl Ergoconsult. NV BEDIMO, an unsuccessful bidder, filed an urgent suspension request on 9 January 2019. Shortly afterwards — on 25 January 2019 — SOFICO withdrew the contested award decision. The withdrawal was notified to all bidders by registered mail on 1 February 2019. No annulment action was filed within the time limit, so the withdrawal became definitive. At the hearing of 17 December 2019 one point remained open: BEDIMO had sued SOFICO, the Belgian State, and the Walloon Region. The Council finds that the Walloon Region in this procedure had only provided 'technical assistance to SOFICO', as expressly stated in the petition itself and confirmed by judgment 244.541 of 17 May 2019. The Region was not a contracting authority and is dismissed from the case. For the remaining defendants — SOFICO and the Belgian State — the Council applies the classic rule of article 30/1 of the coordinated laws: the disappearance of the contested act through withdrawal is a 'substitute for annulment', so the defendants are deemed the losing parties. BEDIMO is awarded the basic €700 procedural indemnity, plus role rights (€200) and contribution (€20). The total €920 is split equally between SOFICO and the Belgian State.
Why does this matter?
For bidders in joint procurements this judgment is a useful signal: make sure you sue the right defendants. The entity that provides only 'technical assistance' can be dismissed — affecting your cost recovery if the case is closed. Identify in your petition who the actual contracting authority is (often stated in the specifications or the award decision), and add the joint contracting authorities when a contract is run by several public bodies. For contracting authorities the message is the same as in other withdrawal cases: a swift withdrawal after an urgent suspension spares you a substantive condemnation, but not the costs. And in a joint procurement those costs are split equally between the real co-contractors. The party providing only advice or technique stays out of range — an argument for transparent role allocation in joint procurement protocols.
The lesson
If you are involved in a joint procurement (for example a partner of SOFICO or a Flemish agency), make sure that your documents — notice, specifications, award decision — clearly identify the contracting authority and joint contracting authorities, and delimit the role of any technical advisers. For bidders: when filing an urgent suspension against a joint award, sue every entity you can reasonably consider as a contracting authority — let the Council decide who is dismissed.
Ask yourself
In a joint procurement, did your petition clearly identify who the actual contracting authorities are versus who only provides technical assistance? If not and the Council dismisses the wrong party, you still bear no costs, but your procedural indemnity will only be split among the remaining co-contractors.
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 →