Attert withdraws the project-author award after Alinea Ter goes to the Council: an action without object, the municipality pays a 770-euro procedural indemnity
After Alinea Ter sought, under extreme urgency, the suspension of the municipality of Attert's award of a project-author contract for housing construction at Heinstert, the municipality withdrew its decision, so the action lost its object — but as the disguisedly annulled party, the municipality bore the costs and a procedural indemnity indexed to 770 euros.
What happened?
By decision of 5 April 2022 the municipality of Attert awarded a public services contract for project-author (auteur de projet) services for the construction of housing at Heinstert (Attert) to the temporary association 'Atelier d'Architecture l'Arche claire - Arcademe'. By application of 7 June 2022 Alinea Ter sought the suspension of that decision under the extreme-urgency procedure. The case was fixed and then postponed sine die. The municipality, however, withdrew the contested decision by a decision of 10 June 2022. It notified that withdrawal to all bidders by registered letters of 17 and 20 June 2022, stating the available remedies and the forms and time limits to be observed. No bidder sought annulment of the withdrawal decision within the prescribed time limit, so the withdrawal could be regarded as definitive and the action had lost its object. On costs, the Council of State held that the disappearance of the contested act through the withdrawal is a form of disguised annulment: under article 30/1 of the coordinated laws on the Council of State, the defending party then counts as the losing party and the applicant as the prevailing party. In its application the applicant had sought a procedural indemnity of 700 euros; at the hearing it asked for it to be indexed to 770 euros. The Council granted this, decided that there was no longer any need to rule, and placed the costs on the municipality: the roll fee of 200 euros, the contribution of 22 euros and the procedural indemnity of 770 euros awarded to Alinea Ter.
Why does this matter?
Together with the Haelvoet/Vivalia judgment of the same day, this ruling shows how consistently the Council of State treats the pattern of the withdrawn award: if the authority withdraws the challenged decision, the action falls without object, but the withdrawal counts as a disguised annulment that makes the authority the losing party. The added value of this second judgment lies in a concrete detail about the procedural indemnity: the applicant had initially sought 700 euros but at the hearing asked for indexation to 770 euros, which the Council granted. For bidders, that is a useful reminder that the procedural indemnity is an indexed amount and that it pays to claim the correct, current figure. For authorities, the judgment confirms that withdrawing an award after an extreme-urgency action is a valid correction, but that the cost bill — including the indexed procedural indemnity — is theirs.
The lesson
If, as a bidder, you challenge an award and the authority then withdraws its decision, your action falls without object but you recover, as the disguisedly prevailing party, your costs and procedural indemnity. Watch the amount: the procedural indemnity is indexed, so claim the correct, current figure — here the Council raised it, on request at the hearing, from 700 to 770 euros. Check that the withdrawal was notified to all bidders with the remedies and time limits, because that makes it definitive. As an authority, withdrawing a challenged award to redo the contract is legitimate, but you bear the costs and the indexed procedural indemnity as the losing party.
Ask yourself
Do you realise that a withdrawn award renders your action without object, yet leaves you, as the prevailing party, able to recover your costs and procedural indemnity? Do you claim the procedural indemnity at the correct, indexed amount (here 770 instead of 700 euros)? Was the withdrawal notified to all bidders stating the remedies, forms and time limits, so that it is definitive? As an authority, do you know that withdrawing a challenged award leaves you bearing the costs and the indexed procedural indemnity, even without a ruling 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 →