VITO withdraws its own award two weeks before the extreme-urgency hearing: the suspension claim lapses, but Mol pays the bill
After the hearing was fixed in bv S.'s extreme-urgency suspension challenge against VITO's public-cloud framework award, VITO withdrew its own award decision — causing the claim to lapse as moot and be rejected by the Council of State, while VITO still had to bear the procedural costs.
What happened?
On 26 February 2024, VITO (the Flemish Institute for Technological Research, based in Mol) decided to award its framework contract for 'public cloud services' to a third party (anonymised in the ruling). For unstated reasons, another bidder — bv S., represented by lawyers Peeters and Engelen (Turnhout) — filed an extreme-urgency suspension challenge (UDN) only on 13 March 2025. The year-long delay between award and challenge is striking, but the ruling does not elaborate. By order of 18 March 2025 the XIVth Chamber fixed the hearing for 2 April 2025. Less than two weeks later — before the hearing — VITO took a decisive step: it withdrew its own award decision. There was no longer a challenged act. At the 2 April 2025 hearing, counsel Engelen appeared for bv S. and Depoorter (loco Dewachter) for VITO. Auditor Michaux delivered a concurring advice. The debate was brief: where there is no administrative act, there is nothing to suspend. The claim was moot and therefore inadmissible. The ruling of 10 April 2025 confirms this in three sentences. The claim is rejected. But — and this is the real lesson for contracting authorities — VITO is ordered to bear the UDN costs: €200 filing fee and €26 contribution. The reason is clear: it was VITO's own action (the withdrawal) that rendered the claim moot. That VITO did so shortly after learning of the UDN suggests it expected to lose the hearing or did not wish to defend the award. The contract will most likely need to be re-awarded or re-tendered — but that falls outside this ruling.
Why does this matter?
This ruling illustrates a frequently used scenario: the contracting authority sees a UDN coming, judges the file indefensible, and withdraws the award to avoid the hearing. For bid managers this is a double signal. On one hand: even without a formal hearing win, a well-founded UDN can force the contracting authority to reconsider. On the other: you only buy time — the contract is not yours, the authority will likely issue a new award decision (possibly after re-evaluation). For contracting authorities: withdrawal is a legitimate strategy to avoid defending a weak case, but you bear the applicant's procedural costs. Weigh the procedural cost against the risk of a suspension on the merits.
The lesson
As a contracting authority, you can avoid UDN suspension by withdrawing your award decision in time — but you will pay the UDN costs (filing fee + contribution, potentially procedural indemnity). It can be a deliberate choice when the file is weak. Weigh the risk of a hearing (suspension and reputational damage) against the cost of a controlled withdrawal. As an applicant bidder: a withdrawal is procedurally a rejection, but you still gain something — costs are borne by the authority and your competitor's award is off the table. The contract is not yet yours; prepare for a new award round.
Ask yourself
Are you considering, as contracting authority, withdrawing an award decision after a UDN filing? Calculate: €200 filing fee + €24-26 contribution + possibly procedural indemnity. Weigh against hearing risk and impact on delivery timeline. As applicant: you've filed a UDN and the authority withdraws — you win costs, not the contract. Prepare your file for the next tender round.
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 →