Infrabel wins the interim proceedings but still withdraws the sleeper contract: Usines Dupuis's action loses its object, the costs do not
Although the Council of State had already dismissed Usines Dupuis's extreme-urgency action against the award of six lots of concrete railway sleepers to the Dutch company De Meteoor in January 2012, Infrabel itself withdrew the award decision on 29 March 2012 and halted the entire procurement procedure, invoking article 18 of the public procurement act — whereupon the annulment action lost its object and Infrabel nevertheless had to bear the costs of 475 euros.
What happened?
On 22 December 2011 Infrabel awarded six lots of contract no. 33/C/0000184913 for the supply of concrete railway sleepers of types M 41 and M 41 CR to the Dutch company De Meteoor; the unsuccessful bidder Usines Dupuis was notified on 23 December 2011. It responded with a double offensive: an action for suspension under extreme urgency and, on 5 January 2012, an action for annulment. The interim proceedings came to nothing: by judgment no. 217.430 of 23 January 2012 the Council admitted De Meteoor as intervening party and dismissed the extreme-urgency action. Usines Dupuis pressed on and requested the continuation of the annulment proceedings on 21 February 2012. Then came the twist: by decision of 29 March 2012 Infrabel's board of directors withdrew the award of the six lots to De Meteoor and halted the procurement procedure entirely, including for the optional lots 3, 4 and 5. Infrabel expressly relied on article 18 of the public procurement act — conducting a procedure does not oblige the authority to award — and on a clause of the specifications themselves. The withdrawal was communicated to Usines Dupuis and De Meteoor; no one challenged it, so it became definitive. At the hearing of 18 February 2013 — which Usines Dupuis itself did not attend — the Council could only find that the action no longer had an object: there was no longer any need to rule. 'Taking into account the circumstances of the case', the Council nevertheless placed the costs, set at 475 euros, on Infrabel.
Why does this matter?
This judgment adds two lessons to the familiar withdrawal scenario. First: a won interim case does not definitively protect an award. The extreme-urgency test is limited to the serious plea and utmost urgency; an authority that clears that hurdle may still, in the annulment proceedings — with a thorough auditor's report on the horizon — come to realise that its decision stands on shaky ground. Infrabel cut its losses and used the broadest instrument a contracting authority has: the freedom not to award (then article 18 of the act of 24 December 1993, today article 85 of the act of 17 June 2016), reinforced by an express clause in the specifications. Unlike a mere withdrawal of the award, halting the entire procedure — optional lots included — also immediately foreclosed any revival of the dispute. The second lesson lies in the costs ruling: although Usines Dupuis had lost the interim case and did not even appear at the hearing, Infrabel bore the costs. Whoever withdraws a decision while an action against it is pending is treated, for costs, as the party that provoked the proceedings — a precursor of what the Council would later systematise, under article 30/1 of the coordinated laws, as 'disguised annulment'.
The lesson
For contracting authorities: the freedom not to award is a fully-fledged exit from a legally contested procurement, even after you have won the interim proceedings — but use it properly: withdraw the award expressly, formally halt the procedure (do not forget the optional lots), cite the legal basis and your specifications clause, and notify the decision to all parties involved so it can become definitive. Do expect to pay the costs of the pending action. For bidders: a lost extreme-urgency case does not mean the case is lost — the deeper review of the annulment proceedings and the auditor's report may still bring the authority to its senses, as here. But be aware of the flip side: after a halt there is no contract left to win; your gain is limited to the costs and a possible damages file. So weigh, before pressing on, what you stand to gain if the authority pulls the plug.
Ask yourself
Do you know that conducting a procurement procedure does not oblige the authority to award, and that even after winning interim proceedings it may still choose to withdraw the award and halt the procedure? As a bidder, do you check whether a withdrawal or halting decision has been communicated to all parties and become definitive — and what that means for your pending action? And as a contracting authority: do you realise that withdrawing during a pending action generally leaves you with the costs, even if the applicant lost the earlier interim case?
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 →