After bpost files an extreme-urgency action, the Ministry of Finance quietly withdraws its award decision — and pays the costs
bpost had been downgraded from first to second place in a framework agreement for federal printing services following a recalculation; it filed an extreme-urgency action with the Council of State on 17 May 2022, and on 2 June the Minister of Finance withdrew the contested ranking decision — with costs awarded against the State.
What happened?
The Federal Public Service Finance had issued a framework agreement for printing, envelope-stuffing and mailing services for participating entities of the Belgian federal government, through an open procedure, in lots. For lot 1 bpost was initially ranked first, competitor Symeta Hybrid second. On 29 April 2022 (according to bpost dated misleadingly as '2 May') the Budget and Management Control Staff — Public Procurement Team decided to reverse the ranking: bpost dropped to second, Symeta Hybrid moved to first. bpost filed an extreme-urgency action on 17 May 2022, represented by attorneys Bob Martens and Andi Zrza, to have the reversed ranking suspended. Symeta Hybrid requested to intervene on 8 June. The hearing was held by Teams on Thursday 9 June 2022 before Chamber President Paul Lemmens, with auditor Frederick Ongena. Before the Council could rule, on 2 June 2022 the Minister of Finance withdrew the contested decision. The parties agreed that the action was thereby without object. What is striking is who pays: the Council awards the costs of the extreme-urgency proceedings (200 euro docket fee, 22 euro contribution, 700 euro procedural indemnity) against the defendant State, payable to bpost. The intervening party Symeta Hybrid bears its own 150 euro docket fee for intervention. The withdrawal is thus not a neutral escape route for the FPS: the bpost challenge clearly had enough legal weight to force the contracting authority back to the drawing board and to allow bpost to recover its costs.
Why does this matter?
Mid-procedure withdrawal is a pragmatic move that contracting authorities regularly deploy when they realise — while drafting their submissions or on the eve of the hearing — that their decision will not survive review. For the applicant this is mixed news: the contested decision is gone, but there is no substantive ruling stating its unlawfulness — often important for a later round, or for a subsequent annulment and damages action. What makes this ruling interesting: the Council still awards the procedural indemnity to bpost, not to the State as the 'winner' of the closed proceedings. The message for contracting authorities: withdrawing to escape a suspension is legitimate, but you bear the costs. For bidders: an extreme-urgency action can, regardless of the final ruling, already force the desired outcome — the withdrawal itself. Note: after withdrawal the contracting authority may adopt a new (better-motivated) decision that you will have to challenge again within a fresh 15-day window.
The lesson
If you are preparing an extreme-urgency action and the contracting authority requests a postponement a few days before the hearing or suddenly withdraws the decision itself: do not simply withdraw your own action. A withdrawal-without-object still entitles you to recover your costs (200 + 22 + 700 euros) and preserves your ability to mount a later annulment or damages action should the new decision again prove problematic.
Ask yourself
You have an extreme-urgency action pending and the contracting authority withdraws its decision: expressly ask your counsel to have the action closed as 'without object' with costs charged to the defendant — not by withdrawing your own request.
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 →