Withdrawing your decision after a suspension still leaves you with the full bill
The Flemish Region withdraws its award decision itself after a UDN suspension, but is nonetheless fully ordered to pay Profacts' procedural costs — and Ipsos pays 150 euros for its intervention.
What happened?
In autumn 2022, the Flemish Minister for Mobility and Public Works awards lot 1 of the 'Travel Behaviour Survey in Flanders and the Brussels-Capital Region' to Ipsos, and declares Profacts' bid irregular. Profacts does not accept this and files a UDN with the Council of State. By judgment no. 255,083 of 22 November 2022, the award decision is suspended. The minister then does what seems to be the most pragmatic move in such a situation: on 9 December 2022, he withdraws the contested decision himself. This eliminates the subject of the annulment appeal that Profacts had meanwhile also filed (on 1 December 2022). It looks like a clean ending for the contracting authority: no annulment on the record, and the procedure can be restarted. But on 26 October 2023, the Council of State, in a short-debate procedure, draws up the final account. The appeal is formally dismissed as without object, but the procedural costs are placed entirely on the Flemish Region: 400 euros in registration fees, 48 euros in contribution, and 770 euros in procedural indemnity to Profacts. Furthermore, intervening party Ipsos must also bear 150 euros in costs for its intervention. The reasoning: whoever withdraws their own decision after a suspension is de facto admitting that the bidder was right, and must bear the procedural costs.
Why does this matter?
For contracting authorities, withdrawal-after-suspension is a tempting escape route: quickly exit the procedure, start over, no annulment judgment in the case law. But the cost bill follows along — typically between 800 and 1500 euros per file, separate from your own legal fees. For bidders, the opposite signal matters: a withdrawal is not a reason not to claim the procedural indemnity. For intervening parties (the 'winner' of the original award), the lesson is hard: siding with the contracting authority costs you 150 euros by default, even if the appeal becomes without object.
The lesson
As a contracting authority: always factor procedural costs into the cost-benefit analysis around withdrawal versus fighting on. As a bidder: always claim the procedural indemnity, even in case of withdrawal. As an intervening party: weigh whether an intervention of 150 euros really adds anything — automatically joining every procedure is more expensive than it looks.
Ask yourself
When withdrawing an award decision after suspension: has my department factored in at least 1,218 euros in procedural costs per cost order (registration fee + contribution + procedural indemnity)?
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 →