The province withdrew its water-cooler award on 4 February, Aqualex filed annulment on 5 February anyway — and recovered 1,140 euro in costs
The Council of State declares Aqualex's annulment action against the award to Waterlogic of lot 1 (water coolers on tap water) of a Province of Flemish Brabant framework agreement to be without object because the provincial executive withdrew its decision on 4 February 2021 — one day before the annulment action was filed — but the province nonetheless bears all 1,140 euro in procedural costs.
What happened?
The provincial executive of Flemish Brabant tendered a framework agreement for the rental and maintenance of water coolers for all institutions of the provincial administration, under specifications 2020003_R_waterkoelers_FAC. On 3 December 2020 it awarded lot 1 'Water coolers on tap water' to Waterlogic Belgium. Aqualex, not selected, filed for extreme-urgency suspension. Judgment no. 249.530 of 20 January 2021 partially suspended the award decision — Aqualex's suspension request was partly upheld. On 4 February 2021 the provincial executive withdrew its award decision. Yet Aqualex still filed an annulment action the next day, 5 February 2021, against the already-withdrawn decision. Not out of stubbornness: the annulment action is technically necessary to consolidate the suspension and — crucially — to be able to claim a procedural indemnity on top of the roll fee and contribution. Senior auditor Ann Eylenbosch produced a report. On 1 December 2021 chamber president Paul Lemmens (XIIth chamber) proposed a written procedure; no party requested a hearing. On 14 February 2022 the Council records the obvious: the contested decision was withdrawn on 4 February 2021, the action is moot. The case is rejected. But the cost order: because the province itself had withdrawn, it must bear all procedural costs — 400 euro roll fee, 40 euro contribution and the 'requested procedural indemnity of 700 euro'. Together 1,140 euro for Aqualex.
Why does this matter?
Three cases on the same day, same XIIth chamber, same president (Paul Lemmens), three applicants in a virtually identical situation — extreme-urgency suspension won, decision later withdrawn — and three very different cost outcomes. Alfa-Zet (252.983) didn't file annulment and received 220 euro. Aqualex (this case) filed annulment but only requested 700 euro procedural indemnity and received 1,140 euro. Haezebrouck (252.985) filed annulment AND requested 1,400 euro procedural indemnity and received 1,840 euro. The pattern is crystal-clear: filing the right paperwork, requesting the right amount. For Aqualex this is an estimated missed opportunity of around 700 euro, because the basic procedural indemnity for proceedings on the merits is 1,400 euro (Royal Decree of 30 January 2014), not 700 euro. Whether the Council would have awarded the full 1,400 euro in this configuration is impossible to prove after the fact — but Haezebrouck, with the same procedural constellation on the same day, did get it. Second insight: the fact that the contested decision had already been withdrawn on 4 February, one day before Aqualex's annulment, does NOT affect the outcome. An annulment action against a withdrawn decision is declared without object but remains a valid basis for recovering procedural costs. For bid managers this is therefore not a trap: even if the contracting authority withdraws before you do, you can still file annulment to capture the procedural indemnity.
The lesson
In every annulment action, claim the full basic procedural indemnity for proceedings on the merits (1,400 euro under the Royal Decree of 30 January 2014). A 'cautious' claim of 700 euro sits on the table as a suggestion to the Council to award less. And do file your annulment action even if the contracting authority has withdrawn its decision in the meantime — the action will be declared without object but will still trigger a procedural indemnity on top of the roll fee.
Ask yourself
You are about to file an annulment action after a successful extreme-urgency suspension. In the prayer for relief: claim a procedural indemnity of 1,400 euro (basic amount for proceedings on the merits) — not 700 euro. Working on a file where the contested decision has already been withdrawn? File anyway: the action will be declared without object, but your roll fee and procedural indemnity will be awarded.
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 →