No ruling on the merits after withdrawal and re-award of lot 4 to same tenderer — withdrawal and re-award final in absence of appeal
SA AXO's appeal against the award of lot 4 (renovation of a palliative care unit) lost its object after the withdrawal of the contested decision and re-award to the same tenderer became final for lack of challenge within the prescribed time limit.
What happened?
CHU Brugmann awarded lot 4 of a public works contract for the renovation of a palliative care unit in building B to Ventair on 19 March 2024. SA AXO filed for suspension under extreme urgency on 29 May 2024 against the decision not to select its offer and to award the contract to another tenderer. The hearing was set for 12 June 2024 but adjourned sine die on 5 June 2024. By decision of 18 June 2024, the respondent withdrew the contested award and, in the same instrument, re-awarded the lot to Ventair. This decision was notified in full to Ventair and the Delta Thermic consortium. AXO and Danneels only received the grounds for declaring their offers irregular. The Council found that AXO had no interest in challenging the withdrawal component, as it only prejudiced Ventair — which AXO's counsel confirmed at the hearing. All notifications mentioned the available remedies with their forms and time limits. The fact that notifications to AXO were not also sent to its lawyers was irrelevant, as they had been sent to the email and postal addresses stated in the offer. No tenderer challenged the withdrawal or re-award within the prescribed time limit. Both having become final, the appeal lost its object. Costs — €200 court fee, €24 contribution and €770 procedural indemnity — were charged to the respondent as the unsuccessful party.
Why does this matter?
This ruling illustrates a particular variant of loss of object: the contracting authority withdraws the contested decision and re-awards the lot to the same tenderer in the same instrument. Two lessons emerge: the interest in challenging the withdrawal belongs exclusively to the original beneficiary, not the unsuccessful tenderer; and notification to the unsuccessful tenderer need not contain the full decision — communicating the grounds for irregularity with indication of remedies to the addresses stated in the offer suffices.
The lesson
As a contracting authority, withdrawal followed by re-award to the same tenderer can deprive a pending appeal of its object, but you will bear the costs as the unsuccessful party. Ensure all tenderers are notified with indication of remedies. As an unsuccessful tenderer, if the authority withdraws and re-awards, consider filing a new appeal against the re-award within the prescribed time limit — otherwise your original appeal loses its object without recourse against the new decision.
Ask yourself
As a contracting authority: was the withdrawal and re-award decision notified to all tenderers with indication of remedies? As an unsuccessful tenderer: has the withdrawal become final? Have you filed an appeal against the re-award within the time limit? Do you have standing to challenge the withdrawal (only if you were the original beneficiary)?
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 →