Two lots, two applications, two procedural indemnities: RESA withdraws the suspended IT award to Contraste Europe and pays N.R.B. 924 euros
After the Council of State had suspended, on 8 December 2021, the award of lots 1 and 2 of RESA’s server contract to Contraste Europe, RESA Innovation et Technologie withdrew the decision on 2 February 2022 and abandoned the award of all three lots, so that N.R.B.’s two annulment actions lost their object; the Council held that N.R.B. had rightly filed a separate application per lot and was therefore entitled to two procedural indemnities — the basic amount of 770 euros for the first action and the minimum of 154 euros for the nearly identical second — but refused the requested increase to 3,360 euros per case.
What happened?
RESA Innovation et Technologie NV, acting for the Liège intermunicipal grid operator RESA NV, placed a services contract for the provision, overall management and hosting of RESA’s servers and IT infrastructure, divided into three lots. By decision of its board of 6 October 2021, notified by email and registered letter of 8 October, it awarded lots 1 and 2 to Contraste Europe NV. The unsuccessful bidder N.R.B. filed two applications on 22 October 2021, one per lot, each directed against the award to Contraste Europe and against the implicit decision not to award the lot to N.R.B. itself. By judgment no. 252.358 of 8 December 2021 the Council joined the cases and suspended the execution of both award decisions. Since RESA did not request continuation of the proceedings within thirty days of notification of that judgment, the auditor proposed on 12 January 2022 to apply the shortened procedure of article 17, § 6 of the coordinated laws; on 26 January 2022 the registry informed the parties that the chamber would proceed to annulment unless one of them asked to be heard within fifteen days. Nobody did. Meanwhile, on 2 February 2022, RESA Innovation et Technologie had withdrawn the contested award decision and abandoned the award of the three lots; that withdrawal was notified to all bidders by registered letters of 10 February 2022 stating the remedies, forms and time limits, and nobody challenged it in time. The definitive withdrawal deprived the actions of their object, so the Council no longer had to rule. That left the costs. N.R.B. claimed in each case a procedural indemnity of 3,360 euros (the maximum), 6,720 euros in total, ‘on account of the manifestly unreasonable nature of the situation’, and in the alternative 860 euros per case. RESA objected that N.R.B. had brought two actions against one and the same act — the decision of 6 October 2021 awarded the three lots at once — so that the second action was superfluous and its costs should stay with N.R.B.; at most the minimum of 140 euros could be granted for the second action, and no increase was warranted since N.R.B. offered only ‘a stereotyped explanation’. N.R.B. replied that the award of each lot is a separate, separately reasoned decision that merely appears in the same document, and that two applications improved readability and understanding of each lot’s specificity. The Council agreed with N.R.B.: the disappearance of the contested acts through withdrawal is a form of disguised annulment, so RESA counts as the losing party within the meaning of article 30/1 of the coordinated laws. Awards of two different lots are distinct decisions, even if contained in the same instrument and resulting from the same procedure, and the pleas were similar but not identical; no principle obliged N.R.B. to file a single application. It was therefore entitled to a procedural indemnity per action. The Council did, however, limit the indemnity for the second action to the minimum ‘because of the great similarity of the two actions’. The increase to 3,360 euros was refused: having brought a prior action or invoking several illegalities does not make the situation manifestly unreasonable. Since the indexation of 9 July 2022 (ministerial decree of 22 June 2022) the basic amount is 770 euros and the minimum 154 euros; the 20 % increase for an annulment action combined with a suspension request is not due because the decisions were withdrawn. The Council awarded N.R.B. a total of 924 euros, lifted the suspension ordered by judgment no. 252.358 and charged RESA with the roll fees of 400 euros and contributions of 40 euros.
Why does this matter?
The judgment answers a practical question every unsuccessful bidder in a contract divided into lots faces: one application against the whole award decision, or one per lot? The Council says both are allowed. The award of lot 1 and that of lot 2 are separate decisions, even when taken on the same day in the same document, and a bidder who challenges them separately is not penalised in costs. There is a price for the authority, though: by ‘losing’ both actions, RESA had to pay two procedural indemnities. The Council tempers this by awarding only the minimum for the second, nearly identical action — a reasonable middle ground that respects both the applicant’s procedural autonomy and the proportionality of costs. The judgment also confirms two settled lines. First: an authority that withdraws its decision after a suspension is treated as the party that suffered annulment. That has cost consequences, but it is also the quickest exit from a lost case — here RESA even acted while the shortened annulment procedure of article 17, § 6 was already under way. Second: the maximum procedural indemnity is exceptional. That the case had already gone through a suspension judgment or that many illegalities were invoked does not make it ‘manifestly unreasonable’. Whoever claims the maximum must show more than the extent of their own effort. Finally, a detail of practical importance: the Council applied the indexed amounts in force since 9 July 2022 even though the actions had been brought in 2021 — the rate on the date of the judgment counts.
The lesson
For bidders: in a contract divided into lots you may file a separate application per lot, especially where the reasoning or your pleas differ per lot. Do expect the Council to award only the minimum for closely similar actions, and do not expect the maximum procedural indemnity merely because you first had to obtain a suspension. After a withdrawal, check that it was notified to all bidders with the remedies and that nobody challenged it; only then is it definitive and can you claim your costs. For contracting authorities: withdrawing a suspended award is a legitimate and often sensible way out, even when the shortened annulment procedure has already started, but you bear the roll fees, contributions and procedural indemnity of every action that thereby loses its object. If you want to limit the number of parallel actions, do not award the lots in a single instrument when the assessment differs per lot anyway — or accept that each lot may get its own procedure.
Ask yourself
Are you challenging an award in lots with one application or one per lot, and have you considered what that means for readability, pleas and costs? If you claim the maximum procedural indemnity, can you concretely show why the situation is manifestly unreasonable, or do you rely only on the extent of your work? Do you know that the procedural indemnity is calculated at the rate applicable on the day of the judgment, not the day of your application? As an authority: have you factored in that a withdrawal after suspension costs you a procedural indemnity per action? And have you notified the withdrawal to all bidders with the remedies, so that it becomes definitive?
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 →