Indaver forces EcoWerf to back down: award of three household-waste lots to Bionerga withdrawn, and the contracting authority foots the bill
After Indaver applied under extreme urgency for suspension of EcoWerf’s decision to award lots 1, 2 and 3 of the contract ‘Processing and logistics of household and bulky waste’ to Bionerga and not to award lots 5 to 7, the intermunicipal waste company withdrew that decision on 1 December 2022, whereupon the Council of State rejected the application, now without object, but ordered EcoWerf to pay the roll fee, the contribution and a procedural indemnity of 770 euros.
What happened?
On 19 October 2022 the board of directors of the intermunicipal waste company EcoWerf decided on contract no. 2022-EW-02-77 for the ‘Processing and logistics of household and bulky waste’: lots 1, 2 and 3 were awarded to Bionerga, while lots 5 to 7 were not awarded. Indaver, which missed out on the contract, filed an application for suspension under extreme urgency on 18 November 2022 against both parts of that decision. The proceedings did not last long: on 1 December 2022 EcoWerf itself withdrew the contested award decision. At the virtual hearing via Teams of 8 December 2022, before councillor of state and acting chamber president Patricia De Somere and with a concurring opinion from first auditor Frederic Eggermont, all that remained was the finding that the application had become without object, or at least that Indaver had lost its interest in it. The Council rejected the application, but the costs ruling went Indaver’s way: ‘in the given circumstances’ EcoWerf was ordered to pay the costs of the extreme-urgency application — a roll fee of 200 euros, a contribution of 24 euros and a procedural indemnity of 770 euros owed to Indaver.
Why does this matter?
Twenty days after the application the case was settled without a single plea being examined on the merits: EcoWerf’s withdrawal rendered the dispute without object, and yet Indaver walked away with a costs order against the contracting authority. That is worth noting, because the operative part formally reads ‘rejection’ — anyone reading only the dictum would think Indaver lost. The judgment also shows how the Council settles costs when the case concerns only an extreme-urgency application: unlike in judgment no. 255.231 of one day later, where the costs were reserved because the annulment action was still pending, the account could be settled here immediately. Finally, the case illustrates that decisions not to award lots can also come within the scope of an extreme-urgency application: Indaver targeted both the award of lots 1 to 3 to Bionerga and the non-award of lots 5 to 7.
The lesson
For bidders: an extreme-urgency application filed promptly after the award puts real pressure on the contracting authority — here the withdrawal followed within two weeks. If the decision is withdrawn, do not forget to recover your costs: the Council placed the roll fee, the contribution and the 770-euro procedural indemnity with EcoWerf. And bear in mind that the decision not to award certain lots can be challenged too, not just the award itself. For contracting authorities: withdrawing an award decision after an extreme-urgency application has been filed can be a sensible course correction, but expect to bear the costs as the losing party — the withdrawal is not a cost-free emergency exit.
Ask yourself
In a contested contract divided into lots, do you target all relevant parts of the decision — including the lots that were not awarded? Do you know that, if the contested decision is withdrawn, you may be entitled to the procedural indemnity and the roll fees, even though your application is formally ‘rejected’? Do you realise that costs are settled immediately when only an extreme-urgency application is at stake, but reserved while an annulment action is pending? And as a contracting authority: do you factor in the costs order when you withdraw a challenged award decision?
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 →