Five years after the extreme-urgency suspension, the Council of State closes the GFI file against AViQ: the withdrawal of the award is definitive, the action without object, the costs on the authority
After the Council of State had suspended under extreme urgency in August 2017 the award of three lots of IT consultancy by AViQ and AViQ had withdrawn that award a month later, the Sixth Chamber found in November 2022 that the withdrawal — despite missing proof of registered notification to one awardee — had become definitive after so many years without any challenge, declared GFI’s annulment action without object and placed the 400-euro roll fee on AViQ.
What happened?
In 2017 the Agence wallonne de la Santé, de la Protection sociale, du Handicap et des Familles (AViQ) ran a public contract for a framework agreement for specialised IT consultancy, divided into lots. GFI submitted a tender on 31 March 2017 for lots 1, 2 and 5. By decision of 6 July 2017 AViQ set that tender aside and awarded lot 1 to Uptime Group, lot 2 to NSI IT and lot 5 to Realdolmen. GFI went to the Council of State. By judgment no. 238.942 of 9 August 2017 the Council suspended the execution of the award decision under extreme urgency. On 7 September 2017 GFI filed its annulment action; the same day AViQ withdrew the contested decision. AViQ notified the withdrawal to all tenderers by registered letter of 13 October 2017, stating the remedies, forms and time limits. Nobody challenged the withdrawal. The annulment proceedings nevertheless dragged on. First auditor Laurent Jans drew up a report that was notified to AViQ on 12 June 2019. Since AViQ did not request continuation of the proceedings within thirty days, the auditor asked on 6 January 2021 for the application of the shortened procedure of article 14quinquies of the general procedural regulation. On 11 January 2021 the registry informed AViQ that the chamber would rule on annulment unless it asked within fifteen days to be heard; neither party did. In principle that scenario leads, under article 30, § 3, of the coordinated laws, to the annulment of the contested act. Chamber president Imre Kovalovszky, however, pointed out that the decision had already been withdrawn in September 2017. One loose end remained: for one of the awardees AViQ could not produce proof of registered notification of the withdrawal, only the email by which that awardee had been informed of it. Given the long time elapsed since and the absence of any action against the withdrawal, the withdrawal could be regarded as definitive. The action had thereby lost its object: there was no longer any need to rule. The costs, namely the roll fee of 400 euros, were placed on AViQ.
Why does this matter?
The judgment is short, but it shows a mechanism that bidders and contracting authorities should know well. An extreme-urgency suspension forces the authority to choose: continue the procedure and await the annulment action, or withdraw the award and start again. AViQ chose the latter, but the annulment action did not thereby vanish from the docket by itself; it took more than five years before the Council of State formally closed the file. The judgment also illustrates the operation of the shortened procedure under article 30, § 3: when the auditor concludes in favour of annulment and the defending party does not request continuation, the Council may annul without further debate. Here AViQ escaped that only because the withdrawal had meanwhile become definitive. Also useful is the Council’s lenient attitude towards a defect in notification: the missing proof of registered mail to one awardee was remedied by an email and by the lapse of time without any challenge. That is a pragmatic but not self-evident outcome — in a fresher file that gap could have mattered. Finally, the judgment confirms what the Council repeats in later case law: an authority that withdraws its award after it has been suspended bears the costs of the proceedings.
The lesson
If, as a contracting authority, you withdraw a suspended award, also close the matter properly in procedural terms: notify the withdrawal to all tenderers and awardees by registered letter stating the remedies, forms and time limits, and keep the proof for each addressee. Here the lapse of time saved AViQ, but you do not want to argue five years later over one missing receipt. Also respond to the auditor’s report: whoever does not request continuation within thirty days gives the Council the option to annul without debate. As a rejected bidder, you may know that an extreme-urgency suspension often already delivers the practical result — the award disappears — and that the subsequent annulment action, even if it ends ‘without object’, returns your costs. Do not count on a quick formal ending, though: more than five years lay between suspension and final judgment here.
Ask yourself
After withdrawing an award decision, do you hold proof of registered notification, stating the remedies and time limits, for every tenderer and every awardee? Do you know that an auditor’s report concluding in favour of annulment can, absent your request for continuation within thirty days, lead to annulment under the shortened procedure? As a bidder, do you realise that an action rendered ‘without object’ by a withdrawal still yields you your roll fee and costs at the authority’s expense? And do you take into account that the formal end of such proceedings can take years?
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 →