BTC withdraws the suspended cleaning contract: Action Global Services’ annulment action loses its object, but the authority bears the costs
After the Council of State had suspended, under extreme urgency, the award of the cleaning of BTC’s offices to CEMRE, BTC withdrew its own decisions; as a result the annulment action of the unsuccessful bidder Action Global Services lost its object, the suspension was lifted, and the costs — as a consequence of that disguised annulment — fell on the contracting authority.
What happened?
The Belgian Technical Cooperation (BTC) awarded a public services contract for the cleaning of its offices. By a decision of 12 March 2013 it declared the offer of Action Global Services irregular and awarded the contract to CEMRE; that decision was notified by letter of 13 March 2013. A new decision of 19 March 2013 confirmed both the irregularity of Action Global Services’ offer and the award to CEMRE. On 13 May 2013 Action Global Services brought an action for annulment together with an application for suspension under extreme urgency. By judgment no. 223.301 of 26 April 2013 the Council of State had already suspended the execution of the contested decisions under extreme urgency; that judgment was notified to the parties by fax the same day. With its response brief, BTC then produced a decision of 27 May 2013 withdrawing the contested acts. That withdrawal was notified to the various bidders by letter of 31 May 2013, stating the available remedies and the forms and time limits to be observed. No bidder sought annulment of the withdrawal decision within the prescribed time limit, so the withdrawal could be regarded as definitive and the action lost its object. The Council of State therefore decided that there was no longer any need to rule, lifted the suspension ordered by judgment no. 223.301, and placed the costs — a procedural indemnity assessed at 475 euros — on the defending party, BTC. The judgment was delivered by the VIth chamber on 12 June 2014.
Why does this matter?
This judgment shows the classic course of a procurement dispute that ends without a ruling on the merits, yet in the bidder’s favour. A bidder who obtains the suspension of an award and then sees the authority withdraw its own decision is formally left with an action ‘without object’, but wins on two fronts: the contested award is gone and the contract must be redone, and the costs fall on the authority. The Council treats the withdrawal as a disguised annulment: the authority then counts as the losing party. The crucial point is that the withdrawal only becomes definitive once it has been notified to all bidders, stating the remedies, forms and time limits, and none of them challenges it in time. Only then can the Council find that the action has lost its object and lift the suspension. The judgment is also a useful older anchor: the same mechanism recurs in the Council’s case law to this day.
The lesson
If, as an unsuccessful bidder, you obtain the suspension of an award and the authority then withdraws its decision, do not treat the sequel as a defeat. The action does lose its object, but you recover your costs: the Council sees the withdrawal as a disguised annulment in your favour (here a procedural indemnity of 475 euros charged to BTC). Do check that the withdrawal was notified to all bidders with the remedies and time limits, because that is what makes it definitive and determines whether the action is truly without object. As an authority, the lesson is: withdrawing a suspended award to correct the procedure is a valid way out, but not a cost-free one — you bear the costs as the losing party, even without a ruling on the merits.
Ask yourself
Do you realise that an award withdrawn by the authority renders your action without object, yet leaves you, as the prevailing party, able to recover your costs? Have you checked whether the withdrawal was notified to all bidders stating the remedies, forms and time limits, so that it is definitive? Do you know that, once the withdrawal is definitive, the Council lifts the suspension previously ordered and closes the case without assessing the pleas on the merits? As an authority, do you realise that withdrawing a suspended award leaves you, even without a ruling on the merits, bearing the costs as the losing party?
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 →