SPI withdrew its rejection mid-procedure: not a case without object, but an inadmissible application — and the costs stay open
SML Ingénieurs Conseils challenged, under extreme urgency, the decision by which SPI declared its tender void for the Werihet business park in Liège because the lump-sum price it had quoted for the feasibility study of a heat network was considered abnormal; when SPI withdrew that decision on 29 July 2026, the prejudice retroactively disappeared with it, so that the application became not devoid of object but inadmissible, and the Council reserved the costs.
What happened?
SPI, the development agency for the province of Liège, put out to tender, under special specification no. 2025-2414, a services contract for the design and implementation of a business park on the Werihet site in Liège. The contract was divided into tranches; tranche 2 concerned a feasibility study for a heat network. On 26 June 2026 SPI’s executive board decided to declare void the tender of SML Ingénieurs Conseils: the global lump-sum price it had quoted for tranche 2 was said to be abnormal, which in SPI’s view rendered the tender substantially irregular within the meaning of article 76, § 3, of the royal decree of 18 April 2017. The same decision awarded the contract to another bidder. SML learned of this by letter of 29 June 2026, headed ‘Notice of non-award’. On 14 July 2026 it lodged an application for suspension under extreme urgency, together with an action for annulment. By order of 15 July 2026 the procedural calendar was fixed and the case set down for the hearing of 5 August 2026. On 29 July 2026 SPI filed documents — and withdrew the contested decision. That fact shaped the entire hearing. The parties were invited to comment on whether, after the withdrawal, the application still met the conditions of article 15, which refers to article 14, of the law of 17 June 2013. They referred to the Council’s recent case law and agreed that SML had lost its interest in the application for suspension. The Council followed that line, but with a precise legal characterisation. Article 14 lays down two cumulative admissibility conditions: the applicant must have, or have had, an interest in obtaining the contract, and must have been, or risk being, harmed by the alleged infringement. The withdrawal of 29 July 2026 operates retroactively to the date on which the contested decision was adopted. It follows that the alleged illegalities, even supposing them established, neither harmed nor risked harming SML. The second condition of article 14 was therefore not met and the application had to be declared inadmissible. The Council dismissed the application for suspension under extreme urgency, treated documents 3 and 5 of SML’s file as confidential at this stage, and reserved the costs.
Why does this matter?
The judgment refines a distinction that is often blurred in practice. When an authority withdraws the contested decision, the reflex is to speak of a case that has become devoid of object. The Council takes a different route here: it tests the withdrawal against the admissibility conditions of article 14 of the law of 17 June 2013. Because the withdrawal operates retroactively to the day of the decision, the applicant has, in legal terms, never suffered prejudice — so it is not the object that has disappeared, but the admissibility. This is not wordplay. It shapes how costs are dealt with, and in this judgment the Council expressly reserves them, precisely because the action for annulment continues and the costs belong there. For those following the case law, there is also a useful contrast with cases where the withdrawal comes only after a suspension has been obtained: there it counts as a disguised annulment and the authority pays the procedural indemnity. The timing of the withdrawal therefore determines who ultimately gets the bill. For bidders the practical meaning is twofold. On the one hand, a withdrawal during an extreme-urgency procedure is often a quiet victory: the rejection disappears, the authority restarts its evaluation, and the comparison of tenders is made afresh. On the other hand, it yields no ruling on the core question — here whether a global lump-sum price for one tranche really was abnormal and whether that makes a tender substantially irregular — so the dispute can return undiminished in a later round.
The lesson
If the authority withdraws the contested decision during your extreme-urgency procedure, prepare for a finding of inadmissibility rather than a ruling on the merits: the withdrawal operates retroactively to the day of the decision, so that in law there is no longer any prejudice within the meaning of article 14 of the law of 17 June 2013. Keep your action for annulment alive, because that is where the costs will be settled — here the Council expressly reserved them. Also ask the authority straight away what happens after the withdrawal: will the evaluation be resumed, does your tender stay in the running, and within what time frame? If you are the authority and you find that your voiding of a tender for an abnormal price is shaky, withdrawing before the hearing is a legitimate and relatively inexpensive way to correct the procedure — at any rate cheaper than withdrawing after a suspension has already been ordered. But be careful with the characterisation itself: a single lump-sum price considered abnormal for one tranche does not automatically make a tender substantially irregular, and article 76, § 3, of the royal decree of 18 April 2017 calls for a real assessment. Finally, request confidentiality for your sensitive documents in good time: the Council granted it here at this stage.
Ask yourself
Do you know that the withdrawal of the contested decision operates retroactively to the day of that decision, and that this makes your application for suspension inadmissible rather than devoid of object? Have you kept your action for annulment alive, so that the costs can be settled there? Have you asked the authority how the procedure will resume after the withdrawal and with which tenders? As an authority: is your finding of an abnormal price based on a concrete assessment, and is it enough to declare the tender void as substantially irregular? And have you, as a party, made your confidentiality request expressly and by document number?
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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 →