After the suspension, the National Lottery withdraws the exclusion of the joint venture: the annulment action loses its object and the Lottery pays for both proceedings
After the Council of State had, on 2 December 2025, suspended the decision declaring a joint venture’s tender irregular in the Brouck’R fit-out contract, the National Lottery withdrew that decision on 13 January 2026, so the annulment action lost its object and the Lottery bears the costs of both the suspension and the annulment proceedings: 800 euros in roll fees, 52 euros in contributions and 924 euros in procedural indemnity.
What happened?
The National Lottery was awarding a framework agreement for the design and execution of the fit-out of its new offices in the Brouck’R building, including change management and the move, through a negotiated procedure. On 14 October 2025 its board of directors decided to declare irregular the tender of a joint venture formed by W. NV and V. BV ‘on the basis of the reasons set out in the interim evaluation report’, and instructed the executive committee to select the bidders admitted to the negotiations, in accordance with point 1.5.2. c) of the specifications. The joint venture sought suspension of that decision. By judgment no. 265.038 of 2 December 2025 the Council of State granted that request: according to that judgment, the ISO 27002 requirement in the specifications was unclear and the maximum execution period of nine months was at odds with the construction schedule the Lottery itself had provided. On 18 December 2025 the joint venture also lodged the action for annulment. On 13 January 2026 the Lottery withdrew the contested decision. The proceedings then continued for months, but in slimmed-down form. First auditor Ines Martens announced that she would not file a report on the annulment action. By order of 6 May 2026 the president of the XIVth chamber proposed to deal with the case without a public hearing; no party asked for a hearing, and the case was taken under advisement on 2 September 2026. In its judgment of 11 September 2026 the Council finds in a single sentence that the action has become without object through the withdrawal, and dismisses it. The National Lottery is ordered to pay the costs of the suspension request and of the annulment action: a roll fee of 800 euros, a contribution of 52 euros and a procedural indemnity of 924 euros to the applicants.
Why does this matter?
The judgment itself is short, but it closes a file that illustrates the dynamics of procurement litigation well. The real work was done in suspension judgment no. 265.038: there the Council held that a requirement in the specifications which several bidders understood differently is not a sound basis for excluding a tender. After that ruling, the National Lottery did not opt for proceedings on the merits but withdrew its decision within six weeks. That removed the exclusion, and with it the object of the annulment action. For the bidder, the result is what counts: its tender is no longer declared irregular. In addition, the judgment settles the costs entirely in its favour: the Lottery pays the roll fees and contributions of both proceedings and the procedural indemnity. The judgment also shows how soberly such a case can end: no auditor’s report, no hearing, simply a written disposal. For contracting authorities it underlines that withdrawing after a suspension is a common and legitimate way out, but not a cost-free one.
The lesson
For bidders: a declaration of irregularity at an interim stage of a negotiated procedure is a challengeable decision — do not wait for the award. Obtaining the suspension often amounts to a de facto win, since the authority will frequently withdraw. Still lodge the annulment action in time, so that the costs of both proceedings remain on the table and you can recover the procedural indemnity. For contracting authorities: if an exclusion is suspended because the specifications themselves are unclear, withdrawing quickly and correcting the procedure is wiser than litigating on. But expect the bill: the roll fees and contributions of the suspension and the annulment proceedings, plus the procedural indemnity.
Ask yourself
As a bidder, do you know that an interim decision declaring your tender irregular before the negotiation stage can already be challenged before the Council of State? After a successful suspension, did you also lodge the annulment action in time, so that you can recover the costs of both proceedings after a withdrawal? As a contracting authority: after a suspension judgment, have you checked whether the problem lies in the specifications themselves, and whether withdrawing and correcting is not the wisest course? Do you realise that a withdrawal leads to the defending party being ordered to pay the costs of both proceedings, even without a ruling on the merits?
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 →