Challenging non-selection pays off: Lebbeke withdraws its award and pays 924 euros in costs, even though Verhoeve Marc gets no contract
A week before the Council of State hearing the Municipality of Lebbeke withdraws its award for the Waaitjesstraat slow-road redevelopment; the Council formally dismisses BV Verhoeve Marc's extreme-urgency action for loss of object but orders the municipality to pay 924 euros in costs, including the requested procedural indemnity of 700 euros.
What happened?
On 20 March 2023 the College of Mayor and Aldermen of Lebbeke awarded the 'Redevelopment of the Waaitjesstraat slow road and connecting local roads' works (specification 2022089) to Green Road NV and decided not to select BV Verhoeve Marc, a contractor from Kalken. Verhoeve filed an extreme-urgency suspension action on 10 April 2023 challenging both its own non-selection and the award to Green Road. Chamber President Paul Lemmens scheduled a virtual Teams hearing for Tuesday 2 May 2023. On Monday 24 April 2023 — eight days before the hearing — the municipal executive decided to withdraw the contested decision. Verhoeve's action lost its subject matter, but the Council held firm on full cost recovery: 'Under the circumstances, costs are to be borne by the defendant, including the applicant's requested procedural indemnity of 700 euros.' The operative part assigned 200 euros filing fee, 24 euros contribution and 700 euros procedural indemnity to the municipality — 924 euros total. First auditor Frederic Eggermont had given concurring advice. Notable: the 700-euro procedural indemnity is 70 euros lower than the 770-euro standard seen in the near-parallel ruling 256,379 (TrueGen/University of Antwerp) of the same week. That gap reflects the amount Verhoeve himself claimed in the request — the Council does not adjust upward ex officio.
Why does this matter?
This is one of two near-identical rulings (alongside 256,379 on the SOAR contract at the University of Antwerp) in which the Council confirmed in the same week that a late withdrawal by the contracting authority does not wipe out the procedural costs. For small contracts — and a slow-road redevelopment in an East Flemish municipality is typically a case worth a few hundred thousand euros — 924 euros in costs is not symbolic. It pressures contracting authorities either to detect internally earlier that their selection is unsustainable (and withdraw before the action is filed) or to defend the hearing in full. The ruling also shows the Council will not spontaneously award a higher procedural indemnity than the applicant requested — if you want 770 euros per the indexed table, you must ask for it; otherwise you remain stuck at an outdated or undervalued figure. For a non-selected bidder, the ruling confirms that the threshold for challenging a non-selection decision is lower than many believe: you do not need to win a substantive suspension; merely forcing the contracting authority into the hearing via extreme-urgency action often produces a reassessment.
The lesson
As a contractor: a non-selection decision is as challengeable as a non-award. When you suspect the selection criteria were misapplied — because your class or accreditation or references were wrongly assessed — file an extreme-urgency action within 15 days. You do not need certain success on the merits; the threat of a hearing with auditor's advice is often enough to drive the authority to reassess or withdraw. As a municipality or local authority: budget a minimum of 924-994 euros per extreme-urgency action in case of withdrawal, on top of internal legal costs. If your reasoning is shaky, prefer to withdraw before the action is filed (via a corrective letter to the non-selected bidder) — that avoids the formal cost recovery.
Ask yourself
Did you explicitly claim a procedural indemnity in your extreme-urgency request and use the correct amount per the current indexed table (currently 770 to 1,540 euros for urgent-suspension cases)? The Council makes no ex-officio correction — the amount you request is the amount you get.
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 →