Kliko wins the suspension, then refuses to pay the roll fee — yet IOK Afvalbeheer still foots the bill
After Kliko Belgium obtained, under extreme urgency, the suspension of the award of lot 2 of the framework agreement for identification and weighing systems on waste-collection vehicles to Van De Vliet A.E., IOK Afvalbeheer withdrew that award decision; Kliko then deliberately left the roll fee of its annulment action unpaid, whereupon the Council of State deemed the action not to have been filed and was bound to lift the suspension — while nevertheless placing the costs of the urgency phase, including a procedural indemnity of 700 euros, on IOK.
What happened?
On 22 December 2021, IOK Afvalbeheer, the waste-management intermunicipal company of the Kempen region, approved the award report and awarded lot 2 of the framework agreement 'identification and weighing systems for waste-collection vehicles' — the identification system for door-to-door paper-container collection trucks — to Van De Vliet A.E., as the economically most advantageous regular tender on the basis of best price-quality ratio. Kliko Belgium challenged the award and prevailed: by judgment no. 252.912 of 8 February 2022 the Council of State suspended the execution under extreme urgency. Two weeks later, on 22 February 2022, IOK Afvalbeheer withdrew the award decision. Kliko had filed an annulment action the day before, on 21 February 2022, but left its roll fee unpaid: by letter of 21 March 2022 it expressly confirmed that it 'will not proceed to payment of the roll fee' because the contested decision had been withdrawn. The sanction of article 71, fourth paragraph of the Regent's Decree is then inexorable: an action whose fee is not credited within thirty days is deemed not to have been filed. As a result, no annulment action legally remained, and under article 17, § 4, third paragraph of its coordinated laws the Council was obliged to lift the previously ordered suspension. The ruling on costs, however, went Kliko's way: in view of the withdrawal of the contested decision, the Council ordered IOK Afvalbeheer to pay the costs of the urgency proceedings — a roll fee of 200 euros, a contribution of 22 euros and a procedural indemnity of 700 euros. The case was dealt with entirely in writing; neither party requested a hearing.
Why does this matter?
This judgment shows the procedural endgame that follows when a contracting authority withdraws its award decision after it has been suspended. The unsuccessful bidder has then achieved its practical goal and has little interest in financing the annulment proceedings. Deliberately not paying the roll fee is a legitimate, cheap exit: the action is deemed not filed and the case dies out. But that exit has an automatic consequence one must know: without an annulment action, the Council must lift the urgency suspension — it has no discretion there. Whoever risks that lifting while the withdrawal is not yet definitive surrenders the protection of the interim ruling. Equally important is the costs lesson: even though the proceedings end without a ruling on the merits and at the applicant's own initiative, the withdrawal makes the authority the losing party. IOK paid the roll fee of the urgency application, the contribution and the requested procedural indemnity of 700 euros. The bill for a withdrawn award thus lands with the party that took the decision, not the one that challenged it.
The lesson
If, as a bidder, you obtain the urgency suspension and the authority then withdraws its award decision, weigh whether the annulment action still adds anything. Leaving the roll fee unpaid is an accepted way to end the proceedings, but do so only once the withdrawal is definitive: the lifting of the suspension follows automatically, and without a definitive withdrawal you are then left with nothing. Always claim a procedural indemnity in the urgency phase — you recover it even if the case later dies out. As a contracting authority, realise that a withdrawal ends the dispute but not the invoice: as the losing party you bear the roll fee, the contribution and the procedural indemnity of the suspension proceedings.
Ask yourself
Do you know that your action is deemed not filed if you do not pay the roll fee within thirty days — and that the Council of State must then lift the urgency suspension? Have you checked that the withdrawal of the award decision is definitive before letting the annulment proceedings lapse? Did you claim a procedural indemnity in your urgency application, so that you recover it even after a withdrawal? And as an authority: do you factor in that withdrawing a suspended award leaves you paying the costs of the proceedings, even without a judgment on the merits?
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 →