Rejection of suspension for absence of applicant and loss of object of annulation after withdrawal of three non-award decisions — costs charged to respondent
SA KRINKELS' suspension application against three non-award decisions by SOFICO for road verge maintenance was rejected for absence, while the annulation appeal lost its object following the definitive withdrawal of the contested decisions, with costs charged to the respondent.
What happened?
SOFICO decided on 26 January 2024 to renounce the award of three service contracts for road verge maintenance in the districts of Ath, Tournai and Saint-Ghislain, invoking Article 85 of the 2016 Public Procurement Act to launch new open procedures based on a corrected tender specification. These decisions were communicated to KRINKELS on 30 January 2024. KRINKELS filed for suspension under extreme urgency on 14 February 2024 and an annulation appeal on 28 February 2024. The hearing was adjourned sine die on 22 February 2024. On 29 March 2024, SOFICO withdrew all three contested decisions. The withdrawal was notified to all tenderers by registered letters posted on 10 April 2024 with indication of remedies. No appeal was filed against the withdrawal decisions within the prescribed time limit, making them final. At the hearing on 10 October 2024, KRINKELS was neither present nor represented. The Council noted this absence was likely explained by the interim withdrawal. The suspension was rejected under Article 4(3) of the 1991 Royal Decree (absence of applicant). Under Article 30 §5 of the coordinated laws, the Council found the annulation appeal moot. Despite the formal rejection of the suspension and loss of object of the annulation, SOFICO was deemed the unsuccessful party under Article 30/1 due to the withdrawal. Costs — €200 court fee, €24 contribution and €770 procedural indemnity — were charged to the respondent.
Why does this matter?
This ruling illustrates the unusual combination of rejection for absence and loss of object following withdrawal. The Council itself noted that KRINKELS' absence was likely explained by the interim withdrawal. Crucially for cost allocation, withdrawing the contested decisions makes the contracting authority the unsuccessful party — the applicant is deemed to have obtained satisfaction and costs are charged to the respondent, despite the formal rejection of the suspension and loss of object of the annulation.
The lesson
As a contracting authority: withdrawing contested decisions during pending proceedings makes you the unsuccessful party for costs, even if the suspension is formally rejected for absence and the annulation declared moot. As a tenderer: if contested decisions are withdrawn, your appeal loses its object. You need not attend the hearing, as costs are normally charged to the respondent. If you wish to challenge the withdrawal itself, file a new appeal within the prescribed time limit.
Ask yourself
As a contracting authority: are you aware that withdrawing contested decisions during proceedings exposes you to costs? Were the withdrawal decisions notified to all tenderers with indication of remedies? As a tenderer: have the contested decisions been withdrawn in the interim? Has the withdrawal become final? Do you have an interest in challenging the withdrawal, and if so, have you filed an appeal in time?
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 →