UDN filed, contracting authority withdraws the award — bidder wins procedurally, but with reduced procedural indemnity
After ARTES TWT/Roegiers filed on 6 February 2024 a UDN suspension plus annulment against the award to DHERTE (€21.16 million, lot 1 of the construction of the Pôle scolaire des Grands Prés), the Province of Hainaut withdrew its decision on 8 February 2024 — result: both actions become moot, ARTES receives €770 procedural indemnity (no surcharge, because withdrawal is not an annulment).
What happened?
On 18 January 2024 the Province of Hainaut awards lot 1 of the public works contract for the construction of the 'Pôle scolaire des Grands Prés' to SA DHERTE at a controlled and corrected bid amount of €21,158,751.98 ex VAT. ARTES TWT and ARTES Roegiers are informed on 23 January 2024 (registered mail) and 25 January 2024 (email). On 6 February 2024 they jointly file a UDN suspension and an annulment action. Two days later — on 8 February 2024 — the Collège provincial withdraws its award decision; the Province informs the Council of State by email on 14 February 2024. The case is adjourned sine die. The withdrawal decision is served by registered mail on 15 February 2024 on all bidders concerned, with mention of the remedies, forms and deadlines. No bidder files an annulment action against the withdrawal within the prescribed deadline, so the withdrawal becomes final. At the hearing of 25 June 2024 the Council finds both actions moot: article 30, §5 of the coordinated laws on the Council of State allows ruling on both the suspension and the annulment in a single judgment without a request to continue the proceedings and without court fee. ARTES asks for a €924 procedural indemnity. The Council characterises the withdrawal as a "substitute for an annulment": the applicants have substantively succeeded, so the Province is treated as the losing party. However, under article 67, §2, third paragraph of the Regent's decree of 23 August 1948, no surcharge is due when the challenged act has been withdrawn. Result: €770 standard indemnity (instead of the €924 requested), plus the €400 roll fee and the €24 contribution, all at the charge of the Province.
Why does this matter?
This ruling illustrates the procedural leverage of a UDN. A timely UDN against an award forces the contracting authority into a sharp choice: defend and risk a suspension order (with public criticism of the award), or withdraw and restart the procedure (with delay and cost). Here the Province withdrew within 48 hours of receiving the UDN. Lesson for bidders: even without a substantive ruling, a well-built UDN can already force the outcome. Lesson for authorities: after a UDN, if your decision lacks a solid basis, a quick withdrawal hurts less than a suspension. And: the withdrawal only becomes final if no annulment against the withdrawal is filed on time; the initial awardee who disagrees must act within the deadline.
The lesson
As a bidder: a timely UDN is more than a legal tool — it is strong negotiating leverage. Even without a merits ruling, the contracting authority may choose to withdraw to avoid suspension. As contracting authority: before defending a UDN, consider whether your decision has a solid basis; if not, a fast withdrawal is less damaging. As initial awardee: if you disagree with the withdrawal, file an annulment action against it within the deadline — otherwise the withdrawal becomes final.
Ask yourself
As bidder: when preparing a UDN, check whether the contracting authority has previously withdrawn decisions under procedural pressure — this affects your strategy. As contracting authority: before awarding, self-audit the UDN risk: is my motivation complete? Did I treat all candidates equally? Can I provide concrete substantiation for each element? If not, fix it before notification.
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 →