Structural maintenance of the E403: the Flemish Region withdraws Willemen Infra’s non-selection and the award to Stadsbader — action without object, 1,400-euro procedural indemnity
Willemen Infra, not selected on 10 December 2021 for the structural maintenance of the E403 between Kortrijk and Roeselare that was awarded to Stadsbader, challenged both decisions before the Council of State; when the Flemish Region withdrew them on 4 May 2022, the annulment action lost its object and the Council ordered the Region to pay the costs of the urgency application and of the action, including a procedural indemnity of 1,400 euros.
What happened?
On 10 December 2021 the Flemish Region decided not to select Willemen Infra for the public contract ‘E403 Kortrijk-Roeselare towards Bruges – structural maintenance’ and awarded the contract the same day to Stadsbader. Willemen Infra challenged the non-selection, the award and the implicit refusal to award to it, first through an application for suspension under extreme urgency and, on 9 March 2022, through an annulment action. In its procedural history the judgment mentions a suspension judgment no. 253.098 of 24 February 2022, but describes a different contract (maintenance from the water for De Vlaamse Waterweg, awarded to De Brandt) — evidently a clerical error in the text, so that the outcome of the urgency phase in this case cannot be established with certainty from the judgment itself. On 20 April 2022 the Region announced that it would withdraw the contested decision, which it did on 4 May 2022. On 12 September 2022 chamber president Paul Lemmens proposed dealing with the case without a hearing; none of the parties requested one, and the case was taken under advisement on 22 November 2022. The Council found that the action had become without object through the withdrawal and that in those circumstances the costs should fall on the defending party. The operative part ‘dismisses the action’, but orders the Flemish Region to pay the costs of both the urgency application and the annulment action: a roll fee of 400 euros, a contribution of 44 euros and a procedural indemnity of 1,400 euros to Willemen Infra. Stadsbader, as intervening party, bears 150 euros for its intervention. The same day the same chamber president delivered the sister judgments nos. 255.135 and 255.136, in which no annulment action had been brought and the urgency suspension was therefore lifted.
Why does this matter?
The judgment is short, but it shows the difference between two routes a bidder can take after a withdrawal — and what that difference costs. Unlike the applicants in the sister judgments of the same day, Willemen Infra had brought an annulment action. When the Region withdrew, that action formally ended in a ‘dismissal’ for loss of object, but the costs ruling leaves no doubt about who lost: the Region pays the roll fee, the contribution and a procedural indemnity of 1,400 euros, double the 700 euros in the sister cases, precisely because two procedures were pending. A bidder who brings its annulment action and then sees the authority withdraw thus also recovers the costs of that second procedure. The case further illustrates that a withdrawal after a challenged award need not concern the award alone: here both Willemen Infra’s non-selection and the award to Stadsbader disappeared, so the authority had to redo the selection phase. For contracting authorities that is the real price of a withdrawal: not only the costs, but also the loss of the award to the chosen party, which as intervening party moreover pays 150 euros itself without having done anything wrong. Finally, the judgment is a reminder of the Council’s limited means in short-debate procedures: the procedural history contains a reference to another file, a slip that does not affect the outcome but shows that such judgments must be read critically.
The lesson
For bidders: if you have also brought an annulment action after an urgency application and the authority then withdraws, do not let the case fade out silently. The Council closes it with a judgment placing the costs of both procedures on the authority — here a 1,400-euro procedural indemnity — but only insofar as you claimed them. If you were not selected, direct your action against the non-selection and the award; if the authority withdraws both, you are back at the starting line. For contracting authorities: a withdrawal is a legitimate way to correct a shaky selection or award decision, but do not merely announce it — adopt it formally and quickly, and expect to pay the costs of every procedure the bidder has brought in the meantime. For the chosen bidder: your intervention costs you 150 euros, even if the authority itself pulls the plug.
Ask yourself
Did you expressly claim the procedural indemnity in your applications — urgency and annulment — so that after a withdrawal you receive it for both procedures? Is your action directed against all decisions affecting you, including a non-selection decision? As a contracting authority: did you formally decide the withdrawal and report it to the Council in time, and do you realise you bear the costs of every procedure pending against the withdrawn decision? And do you read a short judgment critically enough to notice a reference to the wrong file?
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 →