Authority withdraws award after extreme-urgency suspension — yet still loses and pays €1,216 in costs to the challenging bidder
Infrabel had on 23 August 2022 awarded a contract to TOTAL ENERGIES and declared Modalizy's bid irregular; the Council suspended under extreme urgency on 7 October (judgment 254.700), Infrabel withdrew the contested decision on 18 October and the case became moot — but the Council still ordered Infrabel to pay full procedural costs (€770 + filing fees + contribution) because a withdrawal is 'a form of substitute for an annulment in litigation'.
What happened?
On 23 August 2022 Infrabel made a dual decision: the contract was awarded to TOTAL ENERGIES, and Modalizy's bid was declared irregular. Modalizy went to the Council under extreme urgency. On 7 October 2022 the Council, in judgment no. 254.700, suspended the decision under extreme urgency. Eleven days later, on 18 October 2022, Infrabel withdrew its 23 August decision. The withdrawal was notified to all bidders by registered mail on 20 October 2022, with mention of remedies and deadlines. No bidder challenged the withdrawal within the prescribed period. Modalizy nonetheless filed its annulment application on 20 October 2022. By the end of May 2023 the Council ruled: withdrawal is final, the action has no object, the suspension is lifted. But — and this is the crucial point — the Council treated Infrabel as the losing party. Literally: 'The disappearance of the contested act, consequence of its withdrawal, constitutes a form of substitute for a litigated annulment, so that the adverse party must be considered the losing party in this litigation and the applicant party as the one who obtained satisfaction, within the meaning of article 30/1 of the coordinated laws on the Council of State.' Result: Infrabel pays the procedural indemnity of €770 to Modalizy, plus the filing fees of €400 and the contribution of €46. Total: €1,216 for the challenging bidder — formally a loser (no object), materially a winner (the contested decision was gone).
Why does this matter?
Many bid managers think: 'If the contracting authority withdraws after my extreme-urgency suspension, it was all wasted time — no win, no cost recovery.' Wrong. The Council has consistently applied the 'substitute for annulment' principle: a voluntary withdrawal after suspension is treated for cost purposes the same as an actual annulment. For the bidder this means the threshold to go to the Council is lower than often thought — even if the authority cleverly withdraws after suspension to limit procedural damage, the bidder still recovers procedural costs and the lawyer flat fee. For contracting authorities the lesson is the opposite: a quick withdrawal after suspension provides no full protection against cost orders. The only way to avoid costs is to make a correct decision before there is an application.
The lesson
If you have won a suspension under extreme urgency and the authority then withdraws its decision: still file your annulment application (within the deadline), or at least keep the running procedure active until after the withdrawal. In your final brief, explicitly request the procedural indemnity of €770 plus reimbursement of filing fees (€400) and contribution (€44–€46). The Council applies the substitute principle automatically — but you must claim the indemnity.
Ask yourself
Have you received a withdrawal decision from the authority after a successful extreme-urgency suspension? (1) Check whether the withdrawal indeed fully removes the contested decision. (2) Calculate your recoverable costs: €770 procedural indemnity + €400 filing fees + €44 contribution = €1,214 flat. (3) Do you have an annulment proceeding underway? Then explicitly request application of art. 30/1 in your next brief.
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 →