Thirteen days between petition and withdrawal — a textbook example that filing an urgent suspension request is sometimes enough
The Council of State holds that LUX GREEN's suit against its non-selection for the redevelopment of rue des Remparts in Virton is moot — the City of Virton withdrew its non-selection decision thirteen days after the petition was filed and now bears the full €920 procedural costs.
What happened?
On 13 June 2019 the Aldermen's College of the City of Virton decided not to select LUX GREEN for a public works contract concerning the rue des Remparts (open procedure). LUX GREEN responded swiftly: on 28 June 2019 it filed an urgent suspension request against the non-selection, coupled with provisional measures barring Virton from notifying an award decision to another bidder. An annulment action followed on 13 August 2019. A first hearing was scheduled for 12 July 2019. On 8 July 2019 — four days before — letters requested an indefinite postponement. That is exactly when the City of Virton turned around: on 11 July 2019 it withdrew the contested non-selection decision. The withdrawal was notified to LUX GREEN by registered mail on 16 July 2019. With the annulment time limit running out without recourse, the withdrawal became definitive. The case was rescheduled for 17 December 2019. The Council applied the standard rule: article 17 §4 of the coordinated laws provides that a request rendered moot 'by the act of the opposing party' is rejected, but costs only fall on the applicant when the case became moot through a decision to which the applicant is foreign. Here the City of Virton was the author of the mootness: the procedural costs — €200 court fee, €20 contribution, €700 procedural indemnity — fall fully on the City.
Why does this matter?
For excluded candidates and bidders this is a clear textbook example of the strategic value of an urgent suspension. The City of Virton withdrew its decision thirteen days after the petition — an unusually fast retreat, possibly because the motivation could not stand on its merits. For bidders with a legally strong case: the urgent suspension is not only a last resort but also a negotiation lever. Contracting authorities often get one last opportunity to revisit before the hearing, and re-reading their file sometimes reveals the weakness themselves. For contracting authorities the message is the same as in 246720 (BEDIMO/SOFICO) and 248073 (IPSOS/NMBS): a withdrawn decision is no costless escape. The €700 procedural indemnity is a fixed amount that follows the party who provoked the procedure. When in doubt about the motivation of an award or selection decision, thorough internal review before publication is always cheaper than retroactive damage control.
The lesson
If as a candidate or bidder you receive a non-selection or non-award decision whose motivation looks substantively thin, weigh carefully whether an urgent suspension has a reasonable chance. The threshold for a 'serious' ground is not particularly high. And the mere filing can be enough to make the contracting authority reopen its file — sometimes leading to withdrawal without further judicial review. Reckon, for an urgent suspension, on €200 court fee + €20 contribution + counsel fees (recoverable up to €700 procedural indemnity if you prevail or the other side withdraws).
Ask yourself
You have received a non-selection or non-award decision. Before considering an urgent suspension, read the motivation as a formal check (concrete reasons, references to specific specs, comparison with other candidates) or as a generic formula? A generic motivation is a strong suspension ground. And if the standstill time has not yet expired: an urgent suspension can put the procedure on hold even before the award.
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 →