PwC challenges Zaventem’s award of its tax-services contract to GD&A — and the municipality withdraws its decision within a fortnight
After PricewaterhouseCoopers Business Advisory Services applied on 21 November 2022 for suspension under extreme urgency of the award of the ‘tax services’ contract to the law firm GD & A, the municipality of Zaventem expressly withdrew its award decision on 5 December 2022, promising to retender the contract, whereupon the Council of State rejected the application, now without object, and reserved the costs for the annulment proceedings still pending.
What happened?
On 17 October 2022 the municipality of Zaventem awarded the contract with reference CAD/2022/700/FIN/1597 for ‘tax services’ to GD & A – Advocaten, and not to PricewaterhouseCoopers Business Advisory Services. PwC first notified the municipality of its objections to the award decision and on 21 November 2022 filed an application for suspension under extreme urgency together with an action for annulment. That same 21 November, the college of mayor and aldermen already decided to ‘terminate’ the contract and to ‘put it back on the market’. After taking note of the application, the college went a step further on 5 December 2022: invoking legal certainty, it expressly withdrew the contested award decision of 17 October 2022, confirming that the contract would be retendered. At the virtual hearing via Teams of 8 December 2022, before chamber president Paul Lemmens and with a concurring opinion from first auditor head of division Ann Eylenbosch, all that remained for the Council of State was to find that the application for suspension had become without object, or at least that PwC had lost its interest in it. The Council rejected the application by judgment of 9 December 2022. It deliberately did not yet rule on costs: since the application also sought annulment and the proceedings thus continued, it reserved the costs.
Why does this matter?
This judgment shows the pressure cooker of extreme-urgency litigation at its best: barely eighteen days separate the application of 21 November from the judgment of 9 December, and the practical result — withdrawal of the award and a retender — was secured within two weeks, before any judge had examined the merits. The intermediate step is striking: the college first decided to ‘terminate’ the contract, and only after reading the application did it also formally withdraw the award decision, expressly for reasons of legal certainty. That difference is not legal hair-splitting: as long as the award decision itself exists, it remains open to challenge and the proceedings before the Council remain meaningful; only the express withdrawal removes the object of the action. The judgment also illustrates a procedural nuance bidders should know: unlike where only an extreme-urgency application is at stake, the Council here reserved the costs because the annulment limb was still pending — the settlement, including the question of who counts as the losing party, follows later.
The lesson
For unsuccessful bidders: a well-founded letter of objections followed by an extreme-urgency application can be enough to bring a contracting authority round without the Council ever ruling on the merits — the withdrawal and retender then are your result. Do not be put off by the word ‘rejection’ in the operative part: here it is merely the formal disposal of an application that lost its object. Know also that the costs ruling can be deferred while your annulment action is still pending. For contracting authorities: whoever wants to correct a contested award must expressly withdraw the award decision — an informal decision to ‘terminate’ the contract and retender it does not suffice to end the proceedings. Zaventem understood this and formalised the withdrawal, invoking legal certainty.
Ask yourself
As an unsuccessful bidder, do you first notify the contracting authority of your objections before going to the Council of State — while keeping a sharp eye on the extreme-urgency time limit? Do you realise that a ‘rejection’ for loss of object is fundamentally different from a rejection on the merits? Do you know that costs can be reserved as long as your annulment action is pending, so that the settlement follows later? And as a contracting authority: do you expressly and formally withdraw a contested award decision, or do you rely on a vague ‘termination’ that leaves the object of the action intact?
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 →