Namur’s public welfare centre withdraws the suspended kitchen contract and re-awards it to Sabemaf: GBM gets no ruling on the merits, but does get its costs — with the procedural indemnity capped at the basic amount of 770 euros
After the Council of State had, on 23 July 2021, suspended under extreme urgency the decision by which the public welfare centre (CPAS) of Namur declined to select GBM for unsuitable references and awarded lot 1 (kitchen equipment) of a new care home in Erpent to Sabemaf, the CPAS withdrew that decision on 26 August 2021 and re-awarded the contract to Sabemaf on 30 September 2021 without anyone challenging it; GBM’s annulment action thereby lost its object, the CPAS bears the costs as the party disguisedly annulled, but the requested procedural indemnity of 840 euros was reduced to the indexed basic amount of 770 euros.
What happened?
The CPAS of Namur was building a new care home on avenue du Bois Williame in Erpent and tendered a works contract for the fitting-out of the central kitchen, with lot 1 covering the kitchen equipment. By decision of 27 May 2021 it declined to select GBM’s tender, on the ground that the references submitted were not compliant, and awarded lot 1 to Sabemaf. GBM challenged that decision under extreme urgency and succeeded: by judgment no. 251.299 of 23 July 2021 the Council of State suspended its execution. The same day GBM filed an annulment action. The CPAS then withdrew the contested decision by decision of 26 August 2021 and took a new award decision on 30 September 2021, again in favour of Sabemaf; both decisions were attached to the reply. No action was brought against the new award. The Council inferred that the withdrawal had become definitive and that the action had lost its object. The case was dealt with without a hearing on the basis of the report of auditor Muriel Vanderhelst; no party requested a hearing. On costs the Council applied its settled rule: the disappearance of the contested act through withdrawal is a disguised annulment, so the CPAS counts as the losing party within the meaning of article 30/1 of the coordinated laws. GBM claimed a procedural indemnity of 840 euros. The Council granted the claim but limited it to the basic amount as indexed by the ministerial decree of 22 June 2022, namely 770 euros. It lifted the suspension ordered by judgment no. 251.299 and placed the roll fees of 400 euros and the contributions of 40 euros on the CPAS.
Why does this matter?
This judgment shows a variant of the withdrawal scenario that is less comfortable for bidders than it looks. GBM won the suspension, the CPAS withdrew — and then re-awarded to the same competitor. Because GBM did not challenge that second award, the withdrawal became definitive and the first action lost its object. The practical result is therefore not that GBM got the contract, but that the CPAS redid its procedure and pays the bill for the first round. A bidder who, after a successful suspension, sees a second award to the same party appear must therefore decide again: challenge within the time limit, or acquiesce. The second point of attention is the amount of the procedural indemnity. GBM asked for 840 euros; the Council awarded 770 euros, the basic amount after the June 2022 indexation. A higher amount requires a reasoned request based on the complexity of the case or the other criteria of article 67 of the Regent’s Decree — and in a case that ends without a hearing and without a debate on the merits, there is little room for that. The lesson on costs remains intact: the withdrawal is a disguised annulment, and the authority pays. But the judgment is a reminder that the indemnity is a lump sum, not compensation for actual lawyers’ fees.
The lesson
For bidders: a suspension won and followed by a withdrawal is an interim score, not the final one. Keep a close eye on the new award decision and decide within the time limit whether to challenge it; if you acquiesce, the withdrawal becomes definitive and your first action ends without a ruling on the merits. Claim your procedural indemnity, but know that without reasons you get the basic amount — 770 euros in 2022 — and not the higher figure you may ask for. For contracting authorities: withdrawing after a suspension and redoing the award is a legitimate way out, even if the outcome is the same successful bidder, provided the defect that led to the suspension is actually cured. The costs of the first round (roll fee, contribution, procedural indemnity) remain yours.
Ask yourself
Do you know that a new award to the same bidder after a withdrawal opens a new time limit — and that acquiescing makes the withdrawal definitive? Do you give reasons for a request for a procedural indemnity above the basic amount, or do you just state a figure? As a contracting authority: when redoing the award, did you actually correct the defect identified in the suspension judgment (here the assessment of the references), so that the second decision holds?
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 →