If the contracting authority withdraws the contested decision, you end up as the 'winning party' — even when your appeal loses its object
The Council of State declares the action without object after the contracting authority's withdrawal, but still orders the authority to bear the full procedural costs (€1,218) because the disappearance of the contested act is treated as equivalent to an annulment.
What happened?
Toit & Moi, a social housing company from the Mons region, awarded on 15 December 2023 a fire-detection maintenance contract to Alarmes Coquelet and at the same time declared the bid of Etablissements Dumay-Mior irregular. Dumay-Mior challenged that decision with an annulment action on 16 February 2024 and immediately obtained a suspension in extreme urgency (judgment 258.830 of 15 February 2024). Alarmes Coquelet was admitted as intervening party. Then Toit & Moi did what contracting authorities often do after a suspension: on 22 March 2024 it took a new award decision, which implicitly withdrew the original decision of 15 December 2023. That new decision was notified to all bidders on 9 April 2024. Dumay-Mior again filed a suspension and annulment action against this second decision, but the Council rejected the suspension (judgment 260.087 of 12 June 2024). Dumay-Mior did not pursue the procedure further and the Council decreed desistment (judgment 261.564 of 29 November 2024). The second award became final. For the current action that means: it has lost its object, because the contested decision of 15 December 2023 has been implicitly withdrawn and that withdrawal is now final. The Council however applies an important nuance: the disappearance of the contested act via (implicit) withdrawal by the contracting authority is a 'succédané d'annulation contentieuse' — a surrogate for an adversarial annulment. Toit & Moi is therefore treated as the losing party under Article 30/1 of the coordinated laws on the Council of State. The authority pays €400 in roll fees, €48 contribution and €770 procedural indemnity to Dumay-Mior — €1,218 in total. Alarmes Coquelet pays €150 in roll fees for its intervention. The original suspension is formally lifted.
Why does this matter?
When a contracting authority opts for the pragmatic alternative after a successful suspension — withdrawing and taking a new decision — it sometimes thinks the file is procedurally closed with no cost risk. This judgment makes clear that is not the case. Even without the Council formally annulling the original act, the withdrawal is financially equated with an annulment. The authority bears the costs of the entire suspension and annulment procedure. For the challenging contractor, that is good news: you recover your roll fees and receive a procedural indemnity, even if your action loses its object because of the withdrawal. For the contracting authority, 'fixing the error' is not a free way out.
The lesson
As a contracting authority: reckon with at least €1,200 in procedural costs per applicant after a suspension if you choose withdrawal plus a new decision. Economically you are the losing party, even without a formal annulment judgment. Integrate that cost risk in your decision to withdraw a contested act. As a challenging contractor: do not let the action lapse when the authority withdraws. Keep it alive — the Council will often award the procedural indemnity to you in the 'without object' judgment. And as an intervening party: you bear only your own roll fee (€150 here) in that scenario, but you always do — intervention is never risk-free.
Ask yourself
As a contracting authority: do you know that withdrawal + re-tendering after a suspension does not exempt you from costs? Have you budgeted the costs of the suspended procedure in your internal risk assessment? And have you documented why you are withdrawing — so the new decision does not carry the same flaws?
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 →