Vivalia withdraws the grocery-supply award: Bidfood’s action falls without object, but the intercommunal foots the bill
Bidfood sought, under extreme urgency, the suspension of the decision by which Vivalia awarded lot 1 of a framework agreement for the supply of groceries to its catering department to Sligro as the first-ranked supplier, but when Vivalia withdrew that award and the withdrawal became definitive, the action lost its object — after which the Council of State treated the withdrawal as a disguised annulment in Bidfood’s favour and ordered Vivalia, as the losing party, to bear the costs and a procedural indemnity of 770 euros.
What happened?
The intercommunal association Vivalia organised a public contract for the supply of groceries for the needs of its catering department, in the form of a framework agreement. By a decision of 22 March 2022, Vivalia’s director-general awarded lot 1 of that contract to Sligro, to Bidfood and to Solucious, ranking Sligro first among the suppliers of the framework agreement. Bidfood, considering itself disadvantaged, brought an action for suspension under extreme urgency against that award decision on 27 May 2022. The case was first fixed for the hearing of 15 June 2022, then adjourned sine die, and finally re-fixed for 14 December 2022. Before the case could be dealt with on the merits, however, Vivalia withdrew its own decision: by a decision of 9 June 2022 the contested award was withdrawn, and that withdrawal was notified to all bidders by registered letters of 10 June 2022, stating the available remedies and the forms and time limits to be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 Bidfood’s action had lost its object. On costs, the Council held that the disappearance of the contested act, as a result of the withdrawal, is a form of disguised annulment (‘succédané d’une annulation contentieuse’): 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. Bidfood had claimed a procedural indemnity of 700 euros in its application and asked at the hearing for it to be indexed to 770 euros. The Council granted this. It held that there was no longer any need to rule on the action, and placed the costs on Vivalia: the roll fee of 200 euros, the contribution of 22 euros and the procedural indemnity of 770 euros awarded to Bidfood.
Why does this matter?
This judgment shows a pattern that recurs regularly in procurement litigation: an unsuccessful or low-ranked bidder challenges an award, and before the court rules on the merits, the authority withdraws its own decision. Formally the case then ends ‘without object’, but that does not mean the bidder is left empty-handed. The gain lies in two things. First, the practical result: the contested award is gone and the authority must restart the procedure. Second, the costs ruling: because the Council regards the withdrawal as a disguised annulment, the authority is the losing party and the bidder recovers its procedural indemnity and costs. The judgment also confirms the condition under which the withdrawal renders the action without object: it must be notified to all bidders stating the remedies, forms and time limits, and only when no one challenges it within the time limit does it become definitive. For authorities the message is twofold: withdrawing an award that is under threat of suspension is a valid way to correct a procedure, but it is not a cost-free exit.
The lesson
If, as an unsuccessful or low-ranked bidder, you challenge an award and the authority then withdraws its decision, do not treat the sequel as a lost cause. Claim your procedural indemnity — here indexed to 770 euros — and your costs: the Council sees the withdrawal as a disguised annulment in your favour, so the authority is the losing party. Do check that the withdrawal was notified to all bidders with the remedies, forms and time limits, because that makes it definitive and deprives the action of its object. As an authority, the lesson is: withdrawing a challenged award to redo the contract is legitimate, but you bear the costs and the procedural indemnity as the losing party.
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? Did you claim your procedural indemnity and, where possible, ask for it to be indexed (here from 700 to 770 euros)? Have you checked whether the withdrawal was notified to all bidders stating the remedies, forms and time limits, so that it is definitive? Do you know, as an authority, that withdrawing a challenged award leaves you, even without a ruling on the merits, bearing the costs and the 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 →