Brussels withdraws the award of the archaeological survey in Haren: BAAC's extreme-urgency action loses its object, the Region pays the costs
A week after the Dutch archaeology firm BAAC sought the suspension under extreme urgency of the award of the archaeological survey at Witloofstraat in Haren to the Archaeology Research Unit of KU Leuven, the Minister-President of the Brussels-Capital Region withdrew the contested decision — whereupon the Council of State dismissed the application as having lost its object and placed the costs on the Region.
What happened?
The Brussels-Capital Region tendered, through a general call for tenders, a services contract for the archaeological survey of the site at Witloofstraat in Haren (specifications no. BR250-01), divided into a fixed and a conditional tranche. The Minister-President of the Brussels-Capital Government awarded the contract — by a decision whose very date was unknown — to the Archaeology Research Unit of KU Leuven, and not to BAAC, an archaeology firm incorporated under Dutch law. BAAC lodged an application for suspension under extreme urgency on 18 October 2012. KU Leuven applied on 24 October for leave to intervene — granted, since as beneficiary it drew advantage from the contested decision. But on 25 October 2012, a week after the application and five days before the hearing of 30 October, the Minister-President withdrew the contested award decision. At the hearing the Council of State could only find that the application had lost its object, or at least that BAAC had lost its interest in it, and dismissed it. The costs order nevertheless reflects who in fact came off worse: the Region was ordered to pay the costs of the suspension application (175 euros), while KU Leuven bears the costs of its own intervention (125 euros).
Why does this matter?
This 2012 judgment is an early, pure illustration of a mechanism the Council of State still applies today: a bidder who challenges an award and moves the authority to withdraw it wins de facto — even though the application is formally ‘dismissed’. The swift withdrawal, a week after the application, suggests the Region rated the challenge's chances as high; strikingly, the contested decision did not even have a known date, in itself a sign of careless decision-making. Compared with current practice, what stands out is what did not yet exist in 2012: the procedural indemnity before the Council of State (introduced only with article 30/1 in 2014), so BAAC had to make do with the Region being ordered to pay costs of 175 euros — today a procedural indemnity of 770 euros would come on top, as judgments nos. 255.353, 255.354 and 266.679 show. The judgment is also a reminder that universities compete as full market players for archaeological contracts, and that a beneficiary wishing to intervene does so quickly and at its own expense: the intervention fee remains its own burden, even when the case ends without object.
The lesson
For bidders: a swift and solid extreme-urgency application can do its work before the hearing — an authority that sees its decision totter sometimes prefers to withdraw it rather than suffer a suspension. Do not be misled by the formal ‘dismissal’ in the operative part: the costs order shows who really prevailed. For authorities: an award decision without a known date is asking for trouble; make sure every decision is properly dated, documented and notified. And a beneficiary who intervenes knows that the intervention fee stays at its own expense, even if the case ends without object — intervening is insurance against a suspension decided without you, not a cost-free formality.
Ask yourself
Do you realise that a withdrawal of the contested award renders your extreme-urgency application without object, but that the costs then land with the authority? Do you read the operative part together with the costs order to see who really won? Is every award decision in your organisation properly dated and documented, so that it does not end up before the Council of State as a ‘decision of unknown date’? And as a beneficiary, do you weigh whether to intervene, knowing the intervention fee is yours regardless?
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 →