COCOF withdraws the suspended cleaning contract with social clauses: Jette Clean’s action loses its object, but the authority bears the indexed procedural indemnity of 770 euros
After the Council of State had already suspended the award to Köse Cleaning of a cleaning contract with socio-professional integration, the French Community Commission withdrew its award decision; because no bidder challenged that withdrawal in time, it became definitive, Jette Clean’s annulment action lost its object, and COCOF, as the party disguisedly annulled, had to bear the indexed procedural indemnity of 770 euros and the other costs.
What happened?
By an application of 30 June 2021, NV Jette Clean sought the annulment of the decision of 28 April 2021 of the managing officer of the services of the College of the French Community Commission (COCOF), which awarded NV Köse Cleaning the first lot of the ‘public services contract for the cleaning of buildings in a sustainable-development approach and with a view to socio-professional integration and training, and the external control of those services’. By judgment no. 251.233 of 8 July 2021 the Council of State had admitted Köse Cleaning’s intervention and suspended the execution of the contested decision. The intervening party requested that the procedure continue. COCOF then withdrew the contested decision by a decision of 31 August 2021, notified to all bidders by registered letters posted on 2 September 2021. Köse Cleaning itself sought suspension of that withdrawal decision under extreme urgency, but that action was dismissed by judgment no. 251.776 of 7 October 2021. As no annulment action was brought against the decision of 31 August 2021 within the prescribed time limit, the withdrawal could be regarded as definitive, so Jette Clean’s action lost its object. First auditor Constantin Nikis drew up a report under article 93 of the general procedural rules; by an order of 5 December 2022 the case was referred, under the succinct-debates procedure, to the hearing of 18 January 2023, unless a party requested a hearing within fifteen days. No party did so. In its judgment of 15 February 2023 the VIth chamber (acting president David De Roy) held that there was no longer any need to rule and that the suspension ordered by judgment no. 251.233 was lifted. Because the disappearance of the contested act through the withdrawal is a disguised annulment, COCOF counts, under article 30/1 of the coordinated laws, as the losing party. Since the entry into force on 9 July 2022 of the ministerial decree of 22 June 2022, the basic procedural indemnity is 770 euros; because of the withdrawal, no increase was due. The Council imposed on COCOF a roll fee of 200 euros, a contribution of 20 euros and the procedural indemnity of 770 euros; the intervening party Köse Cleaning bears only the 150-euro fee attached to its intervention.
Why does this matter?
The judgment is a French-language twin of the Dutch-language case Hens/VMM of the same day, but it adds three useful refinements. First, it illustrates the indexation of the procedural indemnity: since 9 July 2022 the basic amount is 770 euros, and on a withdrawal no increase is due. Second, it shows that even the beneficiary of the award — here Köse Cleaning, which had intervened — can end up empty-handed: its own urgent action against the withdrawal was dismissed, and it bears only its 150-euro intervention fee. Third, it shows how serenely such a conclusion can unfold through succinct debates: when no party requested a hearing, the Council could dispose of the case without pleadings. The core remains the same as in the related judgments: an authority that withdraws its own suspended award clears the dispute but pays the bill, while the unsuccessful bidder who obtained the suspension, as the prevailing party, recovers its costs.
The lesson
If, as an unsuccessful bidder, you obtain the suspension of an award and the authority then withdraws its decision, your action ends ‘without object’ but you win on the two points that matter: the contested contract is gone and you recover your procedural indemnity (the indexed basic amount of 770 euros) and your costs. If you do not respond to an order under succinct debates, the Council decides without a hearing — so do not let the fifteen-day period lapse if you still want to plead. If you are the beneficiary who intervened, do not count on your intervention to shield you from the withdrawal: you can recover only your own 150-euro intervention fee. As an authority, the message remains that withdrawing a suspended award is legitimate to correct the procedure, but you bear the indexed costs of doing so.
Ask yourself
Do you know that the basic procedural indemnity has been 770 euros since 9 July 2022 and that no increase is due on a withdrawal? Do you realise that an award withdrawn by the authority renders your action without object yet lets you, as the prevailing party, recover your costs? As a beneficiary-intervener, have you reckoned with bearing only your 150-euro intervention fee and with the risk that your own urgent action against the withdrawal may be dismissed? And after an order under succinct debates, did you request a hearing in time — within fifteen days — if you wished to plead?
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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 →