Action dismissed, but the university pays the bill: the economic reality of a last-minute withdrawal
The University of Antwerp withdraws its award decision for a SOAR cybersecurity platform the day before the extreme urgency hearing and halts the entire procurement procedure; the Council of State formally dismisses TrueGen's action for loss of subject matter but orders the contracting authority to bear all costs, including a procedural indemnity of 770 euros.
What happened?
On 21 March 2023 the University of Antwerp took three parallel decisions regarding specification 22142 — a supply and installation contract for a SOAR (Security Orchestration, Automation and Response) platform for its Security Operations Center: the contract went to Jarviss NV, TrueGen's offer was rejected and declared irregular for failing selection criteria. TrueGen filed an extreme-urgency suspension action on 6 April 2023. The hearing was scheduled for Wednesday 26 April 2023. On Tuesday 25 April — one day before the hearing — the university's executive board withdrew the award decision and halted the entire procurement procedure. Chamber President Paul Lemmens noted the next day that the action had lost its subject matter, dismissed it formally, and yet ruled: 'Under the circumstances, costs are to be borne by the defendant.' The University of Antwerp was ordered to pay 200 euros in filing fees, 24 euros contribution, and a procedural indemnity of 770 euros — all due to TrueGen. The procurement is dead, TrueGen has won no contract, but recovers its procedural expenses and has achieved what an extreme-urgency action seeks in practice: the contested award has vanished.
Why does this matter?
This ruling illustrates a tactical choice contracting authorities increasingly make: better to withdraw the decision at the last moment than to risk a substantive suspension. To the bidder, the operative part ('The Council dismisses the action') reads as a defeat, which materially it is not. The Council of State systematically channels such cases through a cost transfer: when an action loses its object through mid-procedure withdrawal, the defendant typically bears the costs. For the contracting authority this means withdrawal is not a free exit — filing fees and procedural indemnity accumulate, especially in repeat litigation. For the bidder it signals that the internal reasoning or regularity assessment was deemed unsustainable, offering leverage for renegotiation or scrutiny of the restarted procedure.
The lesson
If as a contracting authority you consider withdrawing an award to neutralise an extreme-urgency action, calculate two things in advance: (1) the cost exposure — filing fee, contribution and a procedural indemnity of 700 to 1,540 euros per action will be entirely yours; (2) the signalling effect — the excluded bidder will read withdrawal as an admission that your motivation could not withstand auditor scrutiny and will factor that into subsequent appeals against any restarted procedure. If as a bidder you see a withdrawal just before the hearing, immediately obtain the full withdrawal decision and check its grounds, because the same defects will resurface in the restarted procurement.
Ask yourself
Has the contracting authority withdrawn its award decision within a week before the extreme-urgency hearing? Then check: (a) does your closing memorandum explicitly claim costs against the defendant, (b) do you claim the statutory procedural indemnity (typically 700 to 1,540 euros), and (c) are you monitoring the restarted procedure closely — because the Council afterwards looks critically at any recycling of the same defects.
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 →