Withdrawing the award after the urgent-suspension claim: the case becomes moot, but the contracting authority still pays the costs
The Council of State dismisses the urgent-suspension claim as moot because the City of Ghent withdrew its award decision after the claim was lodged, but still orders the city to pay costs — a warning against waiting until urgent-suspension proceedings are underway.
What happened?
On 22 August 2024, the City of Ghent's college of mayor and aldermen decided to award the services contract 'Performing measurements and tests to control road works' (specifications TDW/2024/002-ID5591) to a third bidder. NV L.D.-V.V. was implicitly not selected. On 12 September 2024, NV L.D.-V.V. lodged an urgent-suspension claim against both the explicit award decision and the implicit non-award decision. By order of 13 September 2024, the hearing was first scheduled for 2 October 2024. Then something happened that is increasingly common in practice: on 19 September 2024 — six days after the hearing was scheduled and just days before the first hearing date — the college of mayor and aldermen withdrew its award decision of 22 August. The contested decision no longer existed. For the Council of State this automatically meant that the claim became moot, including as regards the inseparably linked implicit non-award decision. The claim was dismissed as inadmissible. But that did not settle matters for the city. The Council of State ordered Ghent to pay the costs of the claim: a roll fee of €200, a contribution of €24 and a procedural indemnity of €770 — the latter owed to NV L.D.-V.V. In short: the applicant did not get a suspension, but the costs of its claim were charged to its opponent because the latter only acted after the claim.
Why does this matter?
Many contracting authorities believe that a timely withdrawal of a contested award decision gets them off the hook. Technically that is true — the claim becomes moot and no suspension is granted. But the Council of State looks at the causal link between the bidder's claim and the authority's change of course. Those who only start moving after an urgent-suspension claim usually still pay the procedural costs. This matters not only financially (€994 in this case) but also reputationally: the signal that a decision did not hold up to minimal legal scrutiny is public information.
The lesson
If as a contracting authority you notice that an award decision is poorly reasoned or contains a procedural error, withdraw it before a bidder invokes urgent-suspension — not after. If you only do so after the claim, expect a costs order, even if the case itself is declared moot.
Ask yourself
Did you have your award decision thoroughly reviewed for reasoning flaws and procedural risks within the 15-day standstill period? Or do you wait until a bidder lodges a formal claim and only then withdraw?
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 →