VMM withdraws the award for the banks of the Vrouwvliet after Hens challenges the estimate: the urgent action loses its object, but the agency pays
When NV Hens sought, under extreme urgency, the suspension of the award of the works ‘Nature-friendly redevelopment of the banks of the Vrouwvliet’ to BVBA Van Raak L. — its sole plea being that the award report had wrongly failed to treat the chosen tenderer’s offer as abnormally low — the Flemish Environment Agency withdrew its own award decision because the award report contained an incorrect estimate, so the action lost its object and the agency was ordered to pay the costs.
What happened?
By a decision of 6 December 2022, the Flemish Environment Agency (VMM) awarded the public works contract ‘Nature-friendly redevelopment of the banks of the Vrouwvliet’ (specifications L 1625 S 0004 A) to BVBA Van Raak L., and at the same time implicitly decided not to award it to NV Hens. Hens, an unsuccessful bidder, brought an action for suspension under extreme urgency on 24 January 2023. Its sole plea targeted the finding in the award report that the chosen tenderer’s offer was not abnormally low. Before the hearing, on 9 February 2023, the competent head of department of the VMM decided to withdraw the contested award decision. In the withdrawal decision the VMM considered ‘that the first award decision contained an incorrect estimate in point 1.3 of the award report, which may affect the reasoning of that decision’. The parties were convened for a virtual hearing via Teams on 14 February 2023; chamber president Paul Lemmens reported, lawyer Hilde Vermeiren pleaded for Hens and lawyer Matthias Kirsch for the VMM, and auditor Frederick Ongena gave an opinion concurring with the judgment. In its judgment of 15 February 2023 the president of the XIIth chamber found that, through the withdrawal, the action had lost its object, or at least that the applicant had lost its interest. The operative part reads ‘dismisses the action’, but with the costs borne by the VMM: a roll fee of 200 euros, a contribution of 24 euros and a procedural indemnity of 770 euros owed to Hens.
Why does this matter?
This judgment shows how an action under extreme urgency can achieve its goal without the Council of State ruling on the plea’s merits. The VMM withdrew its award before the hearing — not for the reason Hens advanced, but because it found a flaw in the award report itself: an incorrect estimate in point 1.3. That is no incidental detail. The estimate is precisely the yardstick against which an authority assesses whether an offer is abnormally low; if the estimate is wrong, the price assessment — the core of Hens’s grievance — is itself shaky. By withdrawing, the VMM corrected itself and deprived the action of its object. For costs, the logic of disguised annulment then applies: the authority that withdraws its own decision counts as the losing party. The fact that the operative part formally ‘dismisses’ the action changes nothing — the procedural indemnity of 770 euros goes to the bidder.
The lesson
If, as an unsuccessful bidder, you argue that the winning offer is abnormally low, aim also at the estimate and the numerical basis in the award report: a wrong estimate undermines the entire price assessment. If the authority then withdraws its award, do not treat your case as lost because the operative part ‘dismisses’ it: you remain the prevailing party and recover your procedural indemnity (here 770 euros) and the other costs. As an authority, the lesson is that an error in the estimate is no cosmetic slip — it affects the reasoning of your award decision and may force you into withdrawal and re-tendering, with the costs of the urgent proceedings on your plate. Check, point by point, that the estimate in the award report is correct before you award.
Ask yourself
When you challenge an abnormally low offer, have you also examined the accuracy of the estimate and the price analysis in the award report? Do you realise that an authority withdrawing its award before the hearing renders your action without object yet bears the costs itself? Do you know that an operative part ‘dismissing the action’ for loss of object does not bar you from collecting the procedural indemnity? And as an authority: do you verify the estimate in every point of your award report, knowing that one wrong figure can undermine the reasoning of your decision?
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 →