The FSMA reads the pleas and withdraws its paper-archive award — and drops the entire procurement with it
After Dockx Rhenus Archisafe sought suspension under extreme urgency of the award of the ‘paper archive management’ contract to Youston, the FSMA’s management committee decided on 22 November 2022 — ‘after taking cognisance of the pleas’ — to withdraw the award decision and to abandon the placement of the pending contract altogether, so that the action lost its object and the FSMA had to bear the roll fee, the contribution and the procedural indemnity of 770 euros.
What happened?
On 25 October 2022 the FSMA’s management committee awarded the ‘paper archive management’ contract (ref. 2022/025 - TENDER-2022-005296) to Youston, and thus implicitly not to Dockx Rhenus Archisafe. The latter filed an action for suspension under extreme urgency on 10 November 2022. What followed is striking: even before the hearing, on 22 November 2022, the FSMA’s management committee decided — expressly ‘after taking cognisance of the pleas developed in the present application for suspension’ — to withdraw the contested award decision and, moreover, to abandon the placement of the pending contract. The parties were nevertheless heard on 6 December 2022 at a virtual hearing via Teams, with chamber president Paul Lemmens as reporting judge and a concurring opinion from auditor Thomas Maes. The Council found that the action had become without object, or at least that Dockx Rhenus Archisafe had lost its interest in it, and dismissed the action. The costs, however, went entirely to the FSMA: a roll fee of 200 euros, a contribution of 24 euros and the procedural indemnity of 770 euros requested by the applicant. Less than four weeks passed between the filing of the action and the judgment.
Why does this matter?
This judgment shows the extreme-urgency procedure at its most effective: no debate on the merits, no ruling on the pleas, and yet a complete result for the applicant. The authority read the application, evidently saw the risk and cut its losses — not with a half-hearted correction, but by withdrawing the award and scrapping the entire placement procedure. Two things are worth remembering. First: the judgment says in so many words that the withdrawal followed the reading of the pleas. A well-founded application can thus settle the case before any judge gets involved. Second: even though the operative part formally reads ‘dismissal’ because the action had become without object, the costs ruling treats the authority as the losing party. Whoever withdraws a decision under the pressure of suspension proceedings pays the roll fee, the contribution and the procedural indemnity. The lesson of judgment no. 266.679 (Anderlecht) avant la lettre: withdrawal is a legitimate way out, but not a cost-free one.
The lesson
For bidders: invest in the quality of your extreme-urgency application. Here the pleas on paper sufficed to move the FSMA to withdraw within twelve days — faster and cheaper than a fully litigated suspension. Always expressly claim your procedural indemnity: Dockx Rhenus Archisafe was awarded its 770 euros even though the case ended without object. For authorities: withdrawing an award after reading the pleas can be sensible damage control, certainly if you already had doubts about the procedure. But expect to bear the costs, and realise that abandoning the placement means putting the underlying need — here the management of a paper archive — back on the market or organising it differently.
Ask yourself
As an unsuccessful bidder, do you weigh whether an extreme-urgency application with strong pleas can bring the authority to its senses before any hearing? Do you systematically claim the procedural indemnity in your application, so that you recover it even upon a withdrawal? As an authority, do you realise that a withdrawal after reading the pleas leaves you with the costs of the proceedings — roll fee, contribution and procedural indemnity? And if you abandon the placement, do you have a plan for how the underlying need will be met?
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 →