Four years of litigation over 35 photocopiers: school group withdraws its own award and pays the costs
Kantoorinrichting Stulens had been contesting since November 2008 the award of a rental and maintenance contract for 35 digital photocopiers to Nashuatec/Ricoh; after the evaluation committee ‘corrected’ scoring sheets and drew up reasons in September 2012 — four years on — and the Council of State had reopened the proceedings, the school group withdrew the award decision itself on 3 October 2012, rendering the action without object and leaving the school group to bear the costs of 350 euros.
What happened?
In 2008, School Group 15 Limburg North of the Flemish Community Education network launched a general call for tenders for a rental and all-in maintenance contract for 35 digital photocopiers with administrator software. Four bidders tendered: Xerox, Nashuatec/Ricoh, Konica/Minolta and Stulens/Canon. An evaluation committee assessed the tenders on 23 October 2008, and on 5 November 2008 the contract was awarded to Nashuatec/Ricoh. Kantoorinrichting Stulens filed an annulment action on 18 November 2008. What followed says much about the file: by judgment no. 221.868 of 20 December 2012 the Council of State reopened the proceedings, and in the meantime the authority had tinkered remarkably with the file. On 6 September 2012 — almost four years after the award — the evaluation committee proceeded to ‘correct’ certain scoring sheets and points lists and to draw up a statement of reasons, after which the board adopted a new decision on 10 September 2012 that ‘repeated’ the earlier reasoning and added a ‘specification’ to it. Stulens challenged that decision too before the Council of State (case A. 206.487/XII-7087). On 3 October 2012 the board finally decided to withdraw the contested award decision. The Council of State could be brief: the withdrawal rendered the action without object, and in the circumstances it was appropriate to order the defending party to pay the costs of the suspension application and the annulment action — 350 euros in total.
Why does this matter?
This short judgment is the silent witness of a long-drawn-out fight over a modest supply contract, and it confirms two practical truths. First: an authority that tries to repair its evaluation years after the award — ‘correcting’ scoring sheets, updating points lists, drafting reasons a posteriori — is on thin ice. That the school group withdrew the entire award decision shortly after the reopening of the proceedings speaks volumes about the viability of that repair. Second: a party that withdraws its decision while an action is pending escapes the ruling on the merits but not the bill. The action becomes without object, yet the procedural costs — here 350 euros for suspension and annulment together — land with the authority. For bidders this means persistence can pay off even without an annulment judgment: the practical result (the award is off the table) and the costs order come without a ruling on the merits.
The lesson
For authorities: make sure the evaluation and the reasoning are sound before the award, not after. Scoring sheets and points lists ‘corrected’ four years later will not save a shaky decision and ultimately force you to withdraw anyway — with the procedural costs on top. If you withdraw a contested decision, expect to bear the costs as the unsuccessful party. For bidders: a withdrawal along the way is no defeat. Document every step the authority takes — including belated changes to the file, which you can challenge in a new action as Stulens did — and claim your costs when the case ends without object.
Ask yourself
Are your scoring sheets, points lists and reasoning final and sound at the moment of the award itself? Do you realise that ‘correcting’ the evaluation file years later does not restore the lawfulness of the original decision? Do you know that withdrawing a contested award renders the action without object but leaves the costs with the authority? And as a bidder: do you monitor changes to the administrative file and challenge new ‘repair decisions’ in time?
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 →