The Châtelet public welfare centre wants to redo the heating tender for the Sart-Allet care home, is suspended and withdraws: action without object, 350 euros in costs for the centre
On 11 October 2010 the public welfare centre (CPAS) of Châtelet decided not to proceed with the tendering of 30 September 2010 for lot 1 (heating and sanitary) of the extension of the Sart-Allet care home and to relaunch the contract; the Council of State suspended that decision on 22 November 2010 — the day the new tenders were to be opened — whereupon the centre withdrew it on 29 November 2010, so that Delta Thermic’s annulment action became without object, the suspension was lifted and the centre bore the costs of 350 euros.
What happened?
The CPAS of Châtelet organised a tendering for the technical services of the extension of its Sart-Allet residential care home, lot 1 of which covered heating and sanitary installations. Tenders were opened on 30 September 2010. Only eleven days later, on 11 October 2010, the CPAS decided not to proceed with that tendering, to inform the bidders, to relaunch the contract with the opening of tenders set for 22 November 2010 at 10 a.m., and to forward the decision within fifteen days to the municipal college and the provincial governor. Delta Thermic, a bidder in the first tendering, challenged that decision. By judgment no. 209.059 of 22 November 2010 — precisely the day of the planned new opening — the Council of State ordered the suspension of its execution. A week later, on 29 November 2010, the CPAS withdrew its decision of 11 October. Delta Thermic nevertheless filed its annulment action on 22 December 2010, and the pleadings were exchanged. Auditor Elisabeth Willemart found in her report that the contested act had been withdrawn and that the action had lost its object. As neither party requested continuation of the proceedings, she asked on 26 August 2011 for the application of the shortened procedure of article 14quater of the general procedural regulation; on 1 September 2011 the registry informed Delta Thermic that the chamber would declare the discontinuance of the proceedings unless it asked within fifteen days to be heard, which it did not. Councillor of State David De Roy, acting president, did not however opt for the presumption of discontinuance. He took into account the withdrawal of 29 November 2010, which had become definitive: it deprived the action of its object and justified placing the costs on the CPAS. The Council decided that there was no longer any need to rule, lifted the suspension ordered by judgment no. 209.059 and placed the costs, set at 350 euros, on the CPAS.
Why does this matter?
The judgment is short, but the distinction the Council draws matters to bidders. When an auditor’s report concludes that the action has lost its object and nobody requests continuation, the Council may under article 14quater declare the discontinuance of the proceedings — with the result that the applicant bears its own costs. The Council deliberately did not do so here: because the contracting authority had itself withdrawn its decision after it was suspended, the withdrawal counts as a concession to the applicant and the CPAS bears the costs. That is the same logic the Council continues to apply in later case law, such as judgment no. 255.049 of 18 November 2022 and judgments nos. 266.679 and 266.680 of 13 May 2026. The file also shows how quickly a decision to abandon a tendering and start over can run aground: the CPAS decided to start again eleven days after the opening and was suspended on the day the new tenders were to be opened. A contracting authority that breaks off a running procedure must be able to justify it properly, because the bidders in the first round have an interest in preserving their tender.
The lesson
If, as a contracting authority, you want to abandon a tendering and redo it, know that the bidders from the first round can challenge that decision and that a suspension blocks your whole relaunch — here on the day of the new opening. Give thorough reasons for the abandonment and do not schedule the new opening so tightly that an appeal catches you out. If you subsequently withdraw, the Council closes the case with the costs at your expense. As a bidder, after a suspension followed by a withdrawal you need not fear that the annulment action will cost you money: as long as the withdrawal is definitive, the Council finds the loss of object in your favour, even if you did not request continuation of the proceedings. Do remember that the Council then lifts the earlier suspension — it is the withdrawal itself that protects you, no longer the suspension judgment.
Ask yourself
Can you, as a contracting authority, justify a decision to abandon a tendering and redo it in a way that survives an extreme-urgency test? Have you scheduled the new opening of tenders far enough ahead to absorb a possible appeal? Do you know, as a bidder, that a withdrawal after suspension renders the action without object with the costs on the authority, even if you do not request continuation? And do you realise that the suspension is lifted at that point, so that for what follows you must rely on the definitive withdrawal?
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 →