Withdrawing your award decision after being sued costs you €920 — even if the applicant never wins on the merits
The Council of State holds that IPSOS's urgent suspension request against an NMBS award is moot because NMBS withdrew its award decision before the hearing — but NMBS still bears the full costs of the applicant.
What happened?
On 12 June 2020 NMBS awarded lot 3 'Mixed Methods' of a market research contract to Profacts. IPSOS, an unsuccessful bidder for that lot, disagreed and on 2 July 2020 filed an extreme-urgency suspension request against the (unsigned) award decision. NMBS apparently had reason not to defend the decision. On 7 July 2020, five days after the petition was filed, NMBS withdrew its award decision. At the 22 July 2020 hearing the Council of State found the suspension request had become moot, or at minimum that IPSOS had lost its interest in pursuing it. The Council rejects the request but charges all costs to NMBS: €200 in court fees, the €20 contribution, and the €700 procedural indemnity sought by IPSOS — €920 in total, payable by the contracting authority that withdrew its own decision. The judgment was delivered by State Counsellor Johan Bovin acting as president of the 12th vacation chamber, with concurring opinion by Auditor Thomas Maes.
Why does this matter?
For contracting authorities this small but instructive judgment is a reminder: 'rescuing' yourself from proceedings by withdrawing the contested decision after an extreme-urgency request leaves you with the same procedural costs as a lost case. The €700 procedural indemnity is a fixed cost that follows the party causing the proceedings — even when the applicant's substantive arguments are never assessed. For bidders, the converse: even if 'the other side gave in' feels like an incomplete win, financially you are in the same position as if you had won a suspension on the merits.
The lesson
If as a contracting authority you have doubts about your award decision after a petition has been filed — and you are considering withdrawing it to escape proceedings — count on at least €920 in costs plus the procedural indemnity of the opposing party. The financial outcome is identical to a lost case. It is far cheaper to scrutinise your evaluation and motivation before the decision than to do damage control afterwards.
Ask yourself
Has your contracting authority issued an award decision that now looks legally fragile? Compare three scenarios: (1) defend it before the Council — risk of suspension and costs against you; (2) withdraw before the hearing — request becomes moot, but €920 in costs against you; (3) withdraw and reissue a decision with the same outcome — risk of a fresh proceeding plus a ruling that qualifies the conduct as misuse of power. The cheapest route is almost always thorough motivation upfront.
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 →