Newin lost its extreme-urgency application against RESA's IT award, yet still gets 770 euros: whoever withdraws a decision pays — even the bidder who was refused the suspension
On 8 December 2021 the Council of State had dismissed Newin's extreme-urgency application against the award of the three lots of RESA's server contract to Contraste Europe and Proximus; when RESA Innovation et Technologie nevertheless withdrew that award on 2 February 2022 — after the suspension that competitor N.R.B. had obtained the same day — Newin's annulment action lost its object and RESA counted as the losing party, so that Newin recovered the indexed basic indemnity of 770 euros and the costs, but not the 1,680 euros it had requested (too vaguely justified) nor the 20 % increase, which is not due where the decision has been withdrawn.
What happened?
RESA Innovation et Technologie NV, acting for the Liège grid operator RESA NV, ran a 60-month services contract for the provision, overall management and hosting of RESA's servers and IT infrastructure, by competitive procedure with negotiation and divided into three lots: cloud solutions (estimated at 11,000,000 euros), managed services for middleware (1,750,000 euros) and private data centres (2,250,000 euros). Seven candidates were selected; Newin tendered for all three lots. A first award of 25 August 2021 was withdrawn on 6 October 2021 after an extreme-urgency application by Newin, after which RESA, on the basis of a new report of 29 September 2021, admitted only the two best-ranked bidders per lot to the negotiations and a BAFO. Newin, third, fell outside that shortlist. By decision of 6 October 2021 RESA awarded lots 1 and 2 to Contraste Europe and lot 3 to Proximus. Newin applied for suspension under extreme urgency and, by application of 25 October 2021, for annulment. By judgment no. 252.357 of 8 December 2021 the Council dismissed its extreme-urgency application: none of its pleas — on the contract documents, the limitation of negotiations to two bidders and the technical evaluation of its tender — was serious. The same day, in judgment no. 252.358, the Council did suspend the award of lots 1 and 2 at the request of competitor N.R.B. Newin requested the continuation of the annulment proceedings and filed a supplementary memorial. On 2 February 2022 RESA Innovation et Technologie withdrew the award decision of 6 October 2021; it notified this to all bidders by email and registered letter of 9 February 2022, stating the remedies, forms and time limits, and informed the Council on 3 March 2022. Nobody challenged the withdrawal within the time limit, so it became definitive and Newin's action lost its object. On the chamber's proposal, without objection from auditor Muriel Vanderhelst and without any party requesting a hearing, the case was dealt with without a hearing. The question of costs remained. Newin requested a procedural indemnity of 1,680 euros 'in view of the many legal questions raised by the application, the high technicality of the file and the substantial volume of the contract documents', plus the 20 % increase under article 67, § 2 of the general procedural regulation. The Council held that the disappearance of the contested act through its withdrawal is a form of disguised annulment, so that the defending parties count as the losing parties and Newin as the prevailing party within the meaning of article 30/1 of the coordinated laws — regardless of the earlier dismissal of its extreme-urgency application. But it refused the requested increase above the basic amount: Newin confined itself to 'general and far too vague formulas' that do not establish that the case was particularly complex. Since the entry into force on 9 July 2022 of the ministerial decree of 22 June 2022, the basic amount is 770 euros; and under article 67, § 2, third paragraph of the Regent's decree, the 20 % increase is not due where the contested decision has been withdrawn. The Council found that there was no longer any need to rule and placed the costs on RESA: the roll fees of 400 euros, the contributions of 40 euros and a procedural indemnity of 770 euros for Newin.
Why does this matter?
The judgment is the twin of no. 255.118 (N.R.B., same day), but with a reversed starting position that makes it more interesting. N.R.B. had obtained the suspension; Newin had lost its extreme-urgency application. Yet both end up in the same place: RESA pays. The reason is mechanical and deserves to be properly understood. Once the authority withdraws its award decision, the Council treats that withdrawal as a disguised annulment, and the question of who was right on the merits is no longer asked. A bidder who lost its suspension application but kept its annulment action alive thus rides on the suspension a competitor obtained — and recovers its costs without its own pleas ever having been found serious. For authorities this is a real cost item with every withdrawal: not one, but every pending applicant becomes the prevailing party. The second lesson concerns the amount. Whoever wants more than the basic amount must explain concretely why the case was particularly complex; 'many legal questions' and 'voluminous contract documents' are formulas that fit any procurement file and therefore prove nothing. And the 20 % increase for an annulment action following a suspension application expressly lapses upon withdrawal — a detail often forgotten in practice. Finally, the Council confirms that the rate on the date of the judgment applies: although the action was brought in 2021, it applied the basic amount of 770 euros indexed since 9 July 2022.
The lesson
For bidders: losing an extreme-urgency application is no reason to drop the annulment action. Request the continuation of the proceedings and keep track of what competitors do; if the authority withdraws the award, you recover your procedural indemnity and costs, even though your own pleas were never found serious. If you want more than the basic amount, give concrete reasons — which legal questions, what volume, what time investment — and know that the 20 % increase does not apply in any event where there is a withdrawal. For authorities: a withdrawal after a suspension is often the wisest way out, but budget the costs correctly: every applicant with a pending action against the withdrawn decision becomes the prevailing party, so multiply the basic amount by the number of actions. Notify the withdrawal to all bidders with the remedies and time limits, so that it becomes definitive and the pending actions effectively lose their object.
Ask yourself
After losing an extreme-urgency application, have you requested the continuation of your annulment proceedings, so that you benefit if a competitor does obtain the suspension and the authority withdraws? Can you concretely justify an increased procedural indemnity, or are you requesting it with formulas that fit any file? Do you know that the 20 % increase lapses once the contested decision has been withdrawn? And as an authority: before withdrawing, have you counted how many actions are pending against the decision, and notified the withdrawal to all bidders stating the remedies?
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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 →