If you don't challenge a procurement withdrawal head-on, you can't attack it later through the back door
The Council of State rejects two annulment actions against a restarted procurement because the applicant is in reality attacking an earlier withdrawal decision whose lawfulness has already been definitively confirmed in prior rulings.
What happened?
SOFICO — the Walloon infrastructure financing company — ran a public procurement from 2021 onwards for road sweeping and clearing services in the Ciney (lot 5) and Spy (lot 2) districts. Theis Marcel, a contractor from Liège, lost the award three times in a row to competitor Sandri. The first award on 10 August 2021 was successfully challenged by Theis Marcel: the Council suspended it and SOFICO withdrew. Round two: a new award on 7 June 2022, again to Sandri, again suspended by the Council. SOFICO then took a crucial decision on 26 August 2022: it withdrew both awards, abandoned the entire procedure, and announced it would launch a fully new tender. Theis Marcel filed annulment actions against those withdrawal and relaunch decisions. The new procedure led to a third award on 29 September 2023, again to Sandri. Theis Marcel filed annulment actions again (the present cases). In all three grounds, the contractor was not really challenging the award of 29 September 2023 itself, but rather — incidentally — the lawfulness of the withdrawal and relaunch decision of 26 August 2022. The problem for Theis Marcel: on 24 March 2025, in judgments 262.719 and 262.721, the Council had already rejected the direct annulment actions against the 26 August 2022 decision, holding that none of the grounds was well-founded. Those rulings had become final by the time the current cases were decided. The Council concludes that res judicata (autorité de chose jugée) bars raising the same legality complaints again — now incidentally, via the later award decision. The actions are rejected and the contractor bears 800 euros in roll fees, 96 euros in contributions, and 2 × 770 euros in procedural indemnity.
Why does this matter?
As a contractor challenging an award, you sometimes wait and see: you watch a procedure collapse, a new tender is launched, and you may think you are saving your ammunition for that later stage. This judgment makes clear that this strategy often fails. A relaunch decision (withdrawal plus new tender) is a standalone administrative act with individual scope. If you do not — or unsuccessfully — challenge it directly, you can no longer raise its lawfulness afterwards through an appeal against a later award that flows from it.
The lesson
If the contracting authority withdraws everything mid-procedure and restarts, treat that withdrawal/relaunch decision as a full contested act: challenge it directly and immediately with every ground you have. Do not save arguments for the next award — if you lose your direct action against the withdrawal, you cannot invoke those same arguments later, even if the new procedure has identical flaws.
Ask yourself
If the contracting authority withdraws a pending procedure and launches a new one: have you filed a full annulment action against that withdrawal/relaunch decision itself, with all the grounds by which you want to attack its approach? Or are you holding them back for an action against the next award?
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 →