Sportinfrabouw drops its urgent action against the driving-range award in Puyenbroeck: the Council records the discontinuance and the bidder bears the costs
NV Sportinfrabouw sought, under extreme urgency, the suspension of the award of the works ‘Construction of a new driving range and practice holes’ in the provincial estate of Puyenbroeck to the temporary partnership Lesuco – Wulteputte, but discontinued its action a few days before the hearing, whereupon the Council of State recorded that discontinuance and ordered it to pay the costs.
What happened?
By an action brought on 20 January 2023, NV Sportinfrabouw sought the suspension, under extreme urgency, of the decision of the deputation of the Province of East Flanders of 22 December 2022 awarding the public works contract ‘Wachtebeke - Puyenbroeck: Construction of a new driving range and practice holes’ (specifications 2016-0515) to the temporary partnership Lesuco – Wulteputte, and not to Sportinfrabouw. The parties were convened for a virtual hearing via Teams on Thursday 9 February 2023 at 2 p.m.; chamber president Paul Lemmens was to report and first auditor Frederik Eggermont gave a concurring opinion. Before that hearing, by a letter of 2 February 2023, the applicant discontinued its action. The judgment does not state the reason for that discontinuance. In its judgment of 14 February 2023 the president of the XIIth chamber recorded the discontinuance and ordered the applicant to pay the costs of the urgent suspension action, set at a roll fee of 200 euros and a contribution of 24 euros. No procedural indemnity was awarded.
Why does this matter?
This short judgment is the mirror image of the cases in which the authority withdraws its own award. There, the authority counts as the losing party and bears the costs; here, it is the bidder itself that ends its urgent action, so it bears the costs. In other words, whoever ends the proceedings determines who pays. The bill here is limited: only the roll fee of 200 euros and the contribution of 24 euros, with no procedural indemnity in favour of the province. The judgment also shows that discontinuance is a valid and quick way out when a bidder, after seeing the defence and the file or after reassessing its chances, does not wish to pursue the case — although the judgment itself does not make clear what prompted Sportinfrabouw to discontinue. Withdrawing an action under extreme urgency is thus possible, but not entirely free.
The lesson
If, as a bidder, you decide not to pursue your suspension action, discontinue it in good time and explicitly: the Council records the discontinuance and the case is immediately closed. Bear in mind, though, that you then bear the costs yourself — here the roll fee of 200 euros and the contribution of 24 euros. That is the mirror image of the situation in which the authority withdraws its award: in that case the authority bears the costs. So, before you launch an urgent action, weigh how strong your pleas are, because whoever ends the proceedings pays the bill. As an authority, this judgment shows that a discontinuance by the other party ends the case quickly, without your having to mount a defence on the merits.
Ask yourself
Do you know that, if you wish to end your suspension action, you must expressly discontinue it and that the Council records that discontinuance? Do you realise that the party that discontinues in principle bears the costs — here the roll fee of 200 euros and the contribution of 24 euros, with no procedural indemnity? Do you see the difference from the situation in which the authority withdraws its award, where it is the authority that bears the costs? And before you launch an urgent action, have you sufficiently weighed the strength of your pleas against the risk of having to discontinue later yourself?
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 →