CIBES obtains the suspension of its exclusion by Vivalia and then discontinues the case: the inter-municipal association waives the procedural indemnity
After the Council of State had already suspended, by judgment no. 253.677, the execution of the decision by which the inter-municipal association Vivalia had declared CIBES’s bid irregular and awarded the contract for a collective hospital-benchmarking tool to 3M Belgium, CIBES discontinued its annulment action; the Council took note of that discontinuance, while Vivalia waived the procedural indemnity at the hearing and CIBES bore only the roll fees and contributions and 3M its intervention fee.
What happened?
The inter-municipal association Vivalia launched a public services contract for the subscription to a collective tool for the analysis and feedback of medical hospital activity, divided into three lots. The non-profit association Centre interdisciplinaire de Benchmarking Économie et Santé (CIBES) submitted a bid, but Vivalia declared it irregular, set it aside and awarded the contract to 3M Belgium. On 5 May 2022 CIBES sought the annulment of that decision before the Council of State. 3M Belgium, as beneficiary of the contract, asked to intervene. By judgment no. 253.677 of 6 May 2022 the Council admitted 3M’s intervention, suspended the execution of the contested decision and declared a series of documents — documents A, B, C and D and the unredacted version of the bid-analysis report from the administrative file, together with documents 4 to 7 attached to the request to intervene — confidential at that stage; it reserved the costs, including the procedural indemnity. The defending and intervening parties requested the continuation of the procedure and filed submissions. On 9 September 2022 CIBES stated that it wished to discontinue its action. Auditor Muriel Vanderhelst drew up a report and the parties were summoned to the hearing of 14 December 2022. Nothing stood in the way of the discontinuance, so the Council took note of it. On costs there was an important nuance at the hearing: Vivalia stated that it waived the procedural indemnity. The Council admitted 3M’s intervention, took note of the discontinuance and ordered CIBES to pay the costs — the roll fees of 400 euros and the contributions of 44 euros. The intervening party 3M bore the 150-euro fee attached to its intervention.
Why does this matter?
At first sight this looks like a banal ending — a bidder withdraws its action — but the context makes it instructive. CIBES had not lost its case; on the contrary, at the suspension judgment of 6 May 2022 it had already prevailed in interim proceedings, since the Council suspended the decision that set aside its bid and awarded the contract to 3M. That a bidder nevertheless discontinues after such a suspension usually signals that the matter has been settled outside the courtroom or that the contract has lost its interest. The judgment shows above all how the costs are then apportioned, and that this is negotiable: the defending party Vivalia waived the procedural indemnity of its own accord, so that CIBES bore only its own roll fees and contributions. Unlike a withdrawal of the award by the authority — which counts as a disguised annulment to the disadvantage of the authority — a discontinuance is a step by the applicant itself, which in principle bears the costs; but the procedural indemnity remains an item on which the parties can reach agreement. The confidentiality arrangement in the suspension judgment is also worth remembering: in procurement disputes the Council may treat commercially sensitive documents, such as the bid-analysis report, as confidential at a given stage.
The lesson
If, as an excluded bidder, you obtain the suspension of your exclusion, you have a strong negotiating position, even if you do not pursue the procedure to the end. If you decide to discontinue, expressly settle the costs: the procedural indemnity is open to agreement, and the other party may — as Vivalia did here — waive it. Do bear in mind that a discontinuance, unlike a withdrawal of the award by the authority, in principle means that you, as applicant, bear the roll fees and contributions. As an authority that has seen an exclusion suspended, weigh whether to continue the procedure or re-tender the contract; waiving the procedural indemnity can be a pragmatic way to let a dispute die down. If you request confidentiality for sensitive documents such as the bid-analysis report, the Council may grant it at a given stage of the procedure.
Ask yourself
Do you realise that a suspension before the Council of State gives you a strong position, even when you do not subsequently pursue the case on the merits? Have you, before discontinuing your action, settled the costs — in particular the procedural indemnity, which the other party may waive? Do you know that a discontinuance in principle means that you, as applicant, bear the roll fees and contributions, while an intervening party bears only its own intervention fee? And as an authority: have you considered whether waiving the procedural indemnity can let a dispute die down faster, and whether sensitive documents should be treated as confidential?
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 →