Vivalia withdraws the medical-chairs award after Haelvoet goes to the Council: an action without object, but the intermunicipal foots the bill
After Haelvoet sought, under extreme urgency, the suspension of Vivalia's award of a contract for the supply and installation of medical chairs, the intermunicipal withdrew its award decision, so the action lost its object — but because that withdrawal counts as a disguised annulment, Vivalia, as the losing party, had to bear the 700-euro procedural indemnity and the costs.
What happened?
By decision of 1 April 2022 the intermunicipal association Vivalia awarded a public contract for the supply and installation of medical chairs for various Vivalia institutions (specifications no. 1/001/2021). Lot 1 went to Moments Furniture, based in Ingelmunster, for 62,028.35 euros (VAT included); lots 2 and 3 went to Distrac, based in Hoegaarden, for 1,251,131.48 euros and 9,761.13 euros respectively (VAT included). By application of 27 May 2022 Haelvoet sought the suspension of that decision under the extreme-urgency procedure. The case was fixed and then postponed sine die. Meanwhile Vivalia withdrew the contested decision by a decision of 7 June 2022. It notified that withdrawal to all bidders by email and registered letter of 9 June 2022, 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 had lost its object. On costs, the Council of State held that the disappearance of the contested act through the withdrawal is a form of disguised annulment: under article 30/1 of the coordinated laws on the Council of State, the defending party then counts as the losing party and the applicant as the prevailing party. The Council decided that there was no longer any need to rule, and placed the costs on Vivalia: the roll fee of 200 euros, the contribution of 22 euros and the procedural indemnity of 700 euros awarded to Haelvoet.
Why does this matter?
The judgment illustrates a pattern that recurs in procurement litigation: a bidder challenges an award, the authority withdraws its own decision, and the action formally ends 'without object'. At first sight that looks like an empty victory, but it is not. First, the contested award is gone and the contract must in principle be redone. Second, the withdrawal counts as a disguised annulment, so the authority is the losing party and the bidder recovers its procedural indemnity and costs. Crucial in the reasoning is how the withdrawal becomes definitive: Vivalia notified it to all bidders, stating the remedies and time limits, and no one challenged it within the deadline. For authorities, the message is that withdrawing a challenged award is a valid way to correct a procedure, but not a cost-free exit. For bidders, the reassurance is that 'without object' does not mean 'empty-handed'.
The lesson
If, as an unsuccessful bidder, you challenge an award and the authority then withdraws its decision, do not treat the sequel as a lost cause. Your action does lose its object, but the Council sees the withdrawal as a disguised annulment in your favour: claim your procedural indemnity (here 700 euros) and your costs. Do check that the withdrawal was notified to all bidders stating the remedies, forms and time limits, because that is what makes it definitive. As an authority, the lesson is that withdrawing a challenged award to redo the contract is legitimate, but you bear the costs as the losing party — even without a ruling on the merits of the pleas raised.
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 procedural indemnity and costs? Was the withdrawal notified to all bidders stating the remedies, forms and time limits, so that it is definitive? Did no bidder challenge the withdrawal decision within the deadline? As an authority, do you know that withdrawing a challenged award leaves you, even without a ruling on the merits, bearing the costs as the losing party? Do you allow for the contract having in principle to be redone after the withdrawal?
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 →