Antwerp withdraws the award of the high-visibility workwear lot four days before the hearing — the application is dismissed and the city pays
Van Heurck challenged under extreme urgency the City of Antwerp’s decision to award lot 1, ‘Outdoor workwear with high-visibility marking’, of its framework contract for work and safety clothing to Partner BVBA, but the municipal executive withdrew that decision on 18 January 2013, four days before the hearing; the Council of State found the application had thereby lost its object, refused the intervening beneficiary the postponement it sought, and put the 175 euros of costs on the city.
What happened?
The City of Antwerp ran a supply procedure for a framework contract for the delivery of work and safety clothing, specification GAC_2012_1357. By a decision of 7 December 2012 the college of mayor and aldermen decided to award lot 1, ‘Outdoor workwear with high-visibility marking’, to Partner BVBA rather than to Van Heurck NV. Van Heurck lodged an application for suspension under extreme urgency against that award on 3 January 2013. On 14 January 2013 Partner BVBA applied to intervene in the interim proceedings: as the beneficiary of the contested decision it derived an advantage from it and had an interest in the application being dismissed, so its request was granted. The parties were summoned to the hearing of 22 January 2013 at 10.30 a.m. Four days before that hearing, on 18 January 2013, the college of mayor and aldermen withdrew the contested decision. That knocked the bottom out of the application: the Council of State found that it had lost its object, or at least that the applicant had lost its interest in it — something Van Heurck expressly acknowledged at the hearing. The intervening party tried to keep the case alive. It observed at the hearing that it had not yet received official notice of the new decision, that it was not established that the withdrawal decision would go unchallenged, and that it would have definitively secured the lot if that withdrawal were later suspended or annulled while the present application had meanwhile been dismissed on the merits. On that basis it asked for a postponement. The Council did not follow. That observation, it held, does not affect the finding that the application has now lost its object. And even assuming the contested decision would revive after a suspension or annulment of the withdrawal decision, the intervening party thereby fails to show how it is prejudiced by the dismissal of the present application. There was therefore no reason to grant the postponement. The judgment of 29 January 2013 admitted Partner BVBA’s intervention and dismissed the application. On costs, the Council held that in the circumstances it was appropriate to place them on the defending party: the City of Antwerp was ordered to pay the costs of the application for suspension under extreme urgency, fixed at 175 euros. The intervening party bore the costs of its own intervention, fixed at 125 euros.
Why does this matter?
This short judgment exposes three things that converge in procurement litigation more often than one might think. The first is withdrawal as a way out for the contracting authority. An authority faced with an extreme-urgency application that, on reflection, doubts its own decision can withdraw it and so avoid the debate on the merits. That is legitimate, but it is not a free move: the Council put the costs on the city here, not on the applicant who formally came away empty-handed. The operative part says the application is dismissed; the costs order says who actually lost. The second is the position of the beneficiary. Partner BVBA had already secured its lot and saw it slip away through the withdrawal. Its reasoning was strategically sharp: let the Council dismiss Van Heurck’s application on the merits, and my award survives if the withdrawal itself later falls. The Council rejected this with a short but principled finding — a party seeking a postponement must show that it is prejudiced without it, and the intervening party could not. A suspension judgment is not a device for building a fallback position for proceedings still to come. The third is the sober point that a court does not rule on a decision that no longer exists. Van Heurck acknowledged this itself at the hearing, which made the judgment short. For the tenderer concerned that is no loss: the award it attacked has gone, the contract must be redone and its procedural costs are borne by the city. What it does not get is a ruling on whether its tender was wrongly passed over — and therefore no guidance for the next round.
The lesson
If you are the unsuccessful tenderer and the authority withdraws its decision after you have started proceedings, do not read defeat into the word ‘dismisses’ in the operative part. Feel free to acknowledge at the hearing that the application has lost its object — it cost Van Heurck nothing — but expressly ask that the costs be placed on the defending party. Here that was 175 euros; the amount is symbolic, the signal is not. Do bear in mind that you get no ruling on the merits: prepare for a fresh procurement procedure without knowing how the Council would have viewed your pleas. If you are the beneficiary and your award is about to be withdrawn, this judgment shows where the limit lies. You may intervene — that was allowed without discussion — but you cannot ask the Council to carry on litigating about a decision that no longer exists merely to secure your position should the withdrawal itself one day be annulled. If you want to resist that withdrawal, the right route is your own action against the withdrawal decision, not a request for postponement in someone else’s case. And act quickly: the intervening party had still not received official notice of the withdrawal at the hearing, and that did not help it. If you are a contracting authority, the lesson is short. If you doubt your award decision, withdrawing it is a proper way to correct the mistake, even four days before the hearing. But expect to bear the costs — and notify the withdrawal at once to all parties concerned, including the beneficiary and anyone who has already intervened in the proceedings.
Ask yourself
Do you know that an award decision withdrawn during your extreme-urgency proceedings renders your application without object — but that the costs are not therefore yours? Did you expressly ask at the hearing that those costs be placed on the authority? Do you realise that you get no ruling on your pleas and therefore start the new procedure without legal guidance? If you are the beneficiary: have you considered your own action against the withdrawal decision instead of seeking a postponement in your competitor’s case, and can you show concretely what prejudice you suffer without that postponement? And as an authority: did you notify the withdrawal immediately to all tenderers and to the party that had already intervened?
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 →