26 million euros in architect fees for a psychiatric hospital: ISoSL withdraws the award before the hearing, Modulo Architects still wins its procedural indemnity
When intercommunal health authority ISoSL withdrew the appointment of architecture firm AAU for a new 160-bed psychiatric hospital in Lierneux and announced a new procedure based on revised specifications, the annulment action brought by rejected candidates Modulo Architects and BSolutions lost its object, but ISoSL still had to bear the 700-euro procedural indemnity and the costs.
What happened?
ISoSL (Intercommunale de Soins Spécialisés de Liège) decided on 24 May 2022 to award the contract for appointing a design architect for a new 160-bed psychiatric facility on the CHSA site in Lierneux to AAU (Rue du Livourne 39, 1050 Brussels), at a fee rate of 8% of the works amount, capped at 26,000,000 euros excluding VAT. The joint venture Modulo Architects-BSolutions, an unsuccessful candidate, applied on 15 June 2022 for suspension under extreme urgency of that award decision and the underlying specifications. The case was set down for the hearing of 1 July 2022 but was postponed indefinitely. On 29 June 2022, however, ISoSL itself withdrew the contested decision and simultaneously decided to abandon the award and launch a new procedure based on revised specifications. That withdrawal was notified to all bidders on 30 June 2022 by registered letter and email, stating the available remedies, forms and time limits. No bidder challenged the withdrawal decision within the prescribed period, so it became definitive and Modulo Architects-BSolutions's action lost its object. At the hearing of 14 December 2022, which eventually took place after the case was set down again on 16 November 2022, the applicants sought a procedural indemnity of 700 euros. The Council of State agreed: the disappearance of the contested act through withdrawal is a form of disguised annulment ('succédané d'une annulation contentieuse'), so that ISoSL, under article 30/1 of the coordinated laws on the Council of State, counts as the losing party and Modulo Architects-BSolutions as the prevailing party. The Council held that there was no longer any need to rule on the merits, and placed the costs entirely on ISoSL: the roll fees of 400 euros, the contribution of 22 euros, and the procedural indemnity of 700 euros, each split equally between the two co-applicant companies.
Why does this matter?
This judgment follows the same recognisable pattern that recurs often in procurement litigation: an authority withdraws its award before the Council of State can rule on the merits, and the action formally ends without object. For an architecture firm rejected for a contract of this size — a fee rate on a 26-million-euro construction budget — that is no empty victory: the practical result is that the contested award is gone and the contract will be redone under revised specifications, while the withdrawal, as a disguised annulment, places the costs and indemnity burden on the authority. The judgment also shows how early an authority can correct its own mistakes: by withdrawing the award before the hearing, ISoSL avoided a substantive debate over the quality criteria underlying its choice of AAU — but did not escape the costs that come with that change of course.
The lesson
If an authority withdraws the award after you, as a rejected candidate, have filed a suspension claim, do not treat that as a lost cause: claim your procedural indemnity and costs, since the withdrawal counts as a disguised annulment in your favour. Do check that the withdrawal was properly notified to all bidders, stating the remedies and time limits — only then does it become definitive and your action lose its object. If you are the authority and find that your award decision is procedurally or substantively vulnerable, a timely withdrawal is often more advantageous than fighting on the merits — but budget for the procedural indemnity and costs as the price of that change of course.
Ask yourself
If the authority withdraws the contested award after you have filed a claim, do you claim your procedural indemnity and costs, or do you let them go because you assume the case has simply become 'without object'? Do you check whether the withdrawal was notified to all bidders stating the remedies, forms and time limits, so that it is definitive? And as an authority, do you know that withdrawing a contested award can leave you, even without a ruling on the merits, bearing the costs and procedural indemnity 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 →