Charleroi’s public welfare centre withdraws the suspended kitchen-equipment award and accuses Luxpro of a ‘premature’ action: the Council of State rejects that charge and makes the centre pay
After the Council of State had, on 9 November 2020, suspended under extreme urgency the award to GBM of lots 1 and 5 of a framework agreement for kitchen equipment, the public welfare centre (CPAS) of Charleroi withdrew that award on 26 November 2020; Luxpro’s annulment action thereby lost its object, but the CPAS could not blame Luxpro for having filed an application the day after that — not yet notified — withdrawal, with the time limit expiring — the CPAS bears the roll fees, the contributions and a procedural indemnity of 700 euros.
What happened?
The CPAS of Charleroi ran an open procedure for a framework agreement for the supply of kitchen equipment for its various sites, divided into lots. By decision of 24 August 2020 it awarded lots 1 and 5 to GBM and not to Luxpro. Luxpro first challenged that decision under extreme urgency: by judgment no. 248.852 of 9 November 2020 the Council of State suspended the execution of the award. On 26 November 2020 the CPAS withdrew the award decision. Luxpro filed an annulment action the next day, 27 November 2020, unaware of that withdrawal: the CPAS notified the withdrawal to Luxpro only by email of 1 December 2020 and to GBM by registered letter of 15 December 2020. No bidder challenged the withdrawal within the time limit, so it was definitive and the action lost its object. The case was dealt with without a hearing on the basis of the report of first auditor and head of section Christian Amelynck; no party requested a hearing. On costs the Council restated its settled line: the disappearance of the contested act through withdrawal is a form of disguised annulment, so the CPAS counts as the losing party within the meaning of article 30/1 of the coordinated laws. In its reply the CPAS had argued that Luxpro had acted prematurely by still filing an application on 27 November 2020. The Council expressly rejected that argument: on that date the withdrawal had not yet been notified to Luxpro and was a fortiori not yet definitive, while the time limit for bringing the action was about to expire. The Council awarded Luxpro the requested procedural indemnity of 700 euros, lifted the suspension ordered by judgment no. 248.852 and placed the roll fees of 400 euros and the contributions of 40 euros on the CPAS.
Why does this matter?
The main line — withdrawal after suspension renders the action without object, but the authority pays — is by now settled case law. What this judgment adds is the answer to a defence contracting authorities like to raise: that the bidder litigated ‘prematurely’ or needlessly because the authority was already going to withdraw. The Council sets the bar clearly: as long as the withdrawal has not been notified, let alone become definitive, a bidder may not let its time limit lapse on the strength of an announcement or an internal decision it does not yet know. A bidder who files an application in that situation acts diligently, not prematurely, and keeps its right to the procedural indemnity. For practice this also says something about timing on the authority’s side: an authority that wants to withdraw after a suspension should notify quickly. A withdrawal communicated only five days after the decision by email and three weeks later by registered letter comes too late to spare the bidder an annulment action — and thus too late to avoid its costs. Finally, the judgment illustrates the efficient handling of such cases: without a hearing, on the basis of the auditor’s report, with an operative part that merely lifts the suspension and allocates the costs.
The lesson
For bidders: never let your time limit expire because the authority ‘is going to withdraw’. As long as you do not hold a notified, definitive withdrawal, file your annulment action in time; the Council does not regard that as premature and awards you the procedural indemnity. State expressly in your final brief the amount you claim. For contracting authorities: if you decide to withdraw after an urgency suspension, notify it immediately to all bidders, stating the available remedies. Every day of delay increases the chance that a bidder — rightly — still brings an annulment action whose costs you bear. The charge of prematurity does not work.
Ask yourself
Have you ever refrained from an annulment action because the authority said it would withdraw? Do you know that the time limit keeps running as long as the withdrawal has not been notified to you? As a contracting authority: how quickly after a withdrawal decision do you notify it to the bidders, and do you state the remedies so that it can become definitive?
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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 →