OVAM withdraws the suspended award for the Balmatt soil remediation: Ballast Nedam’s action becomes pointless, but OVAM pays the costs
After the Council of State had already suspended, under extreme urgency, the award of the second phase of the Balmatt site soil remediation in Mol to the joint venture Jan De Nul - Envisan - Asbestos Removal (1,439,070.96 euros excl. VAT), OVAM withdrew the award decision; the annulment action of the Ballast Nedam joint venture thereby became pointless and was handled through the short-debates procedure, with the costs of 1,050 euros borne by OVAM.
What happened?
On 9 November 2011, after reconsideration, OVAM awarded the contract for the second phase of the soil remediation of the Balmatt site in Mol (open tendering, specifications SV100701, lot 1447 T) to the joint venture Jan De Nul - Envisan - Asbestos Removal, for 1,439,070.96 euros excluding VAT. The temporary trading company formed by Ballast Nedam Infra, Ballast Nedam Environmental Engineering and DDM Demontage challenged that decision and first prevailed in urgency proceedings: by judgment no. 217.011 of 23 December 2011 the Council of State suspended the execution under extreme urgency. The annulment action followed on 5 January 2012. OVAM then decided, on 18 April 2012, to withdraw the contested award decision itself. The annulment action thereby lost its object: the case was handled through the short-debates procedure (article 93 of the Regent’s Decree of 23 August 1948) as an action that had become ‘pointless’. The Council rejected the action, but ordered OVAM to pay the costs of both the urgency application and the annulment action, assessed together at 1,050 euros.
Why does this matter?
The judgment shows a pattern that remains at the heart of procurement litigation to this day: an unsuccessful tenderer obtains the suspension of the award, the authority then withdraws its own decision, and the case on the merits ends without a substantive ruling. The applicant’s gain lies in the practical result — the contested award is off the table — and in the costs ruling: although the action was formally rejected as pointless, OVAM, having caused that outcome by its withdrawal, had to bear the full costs. Placing the costs on the authority is the logical forerunner of what has since been expressly regulated through the procedural indemnity under article 30/1 of the coordinated laws: whoever withdraws a suspended decision essentially counts as the losing party. For the remediation sector, the case also illustrates that specialised contracts with few players — here over 1.4 million euros of remediation works — are successfully fought out before the Council of State.
The lesson
For tenderers: a suspension under extreme urgency is often the decisive blow, even if no ruling on the merits ever follows. Continue your annulment action after the suspension — if the authority withdraws its decision, you recover your costs and the contract must be redone. For authorities: withdrawing a suspended award is a legitimate way to correct a procedural error, but expect to bear the costs of both procedures. Weigh that against the risk of an annulment with ensuing damages claims.
Ask yourself
Do you know that withdrawing a suspended award decision renders the annulment action pointless, but places the costs on the authority? As a tenderer, do you continue the action on the merits after winning the urgency round, to secure your position and your costs? And as an authority, after a suspension judgment, have you weighed whether withdrawing and redoing the procedure is cheaper than losing 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 →