Suspension application inadmissible after withdrawal of award decision for lot 9 of winter maintenance framework agreement — costs reserved
The Council of State rejected as inadmissible SRL TD PIERRE GILLOTEAUX's urgent suspension application against the award of lot 9 of the winter maintenance framework agreement for roads managed by the Herstal road district, the Walloon Region having withdrawn the contested decision on 16 December 2024, so that the alleged violations had neither harmed nor risked harming the applicant.
What happened?
The Walloon Region and SOFICO launched a framework agreement for winter maintenance services on roads managed by the Herstal road district (2024-2028), divided into lots. Lot 9 was awarded to another tenderer. TD PIERRE GILLOTEAUX filed an urgent suspension application and annulment action on 4 December 2024. On 16 December 2024, the adverse party withdrew the contested decision. At the hearing, the applicant acknowledged that the suspension application no longer met the conditions of Articles 14 and 15 of the Act of 17 June 2013, but requested that costs be charged to the adverse party due to the withdrawal. The Council found the withdrawal operated retroactively, so the alleged violations had neither harmed nor risked harming the applicant. The application was declared inadmissible. Costs were reserved.
Why does this matter?
This ruling illustrates the effect of withdrawal of the contested decision on the admissibility of an urgent suspension application in public procurement. The Council confirms that withdrawal operates retroactively, eliminating the harm condition required by Article 14. Notably, unlike other rulings where withdrawal leads to costs being charged to the withdrawing party, costs were reserved here — likely because the annulment action remains pending.
The lesson
As a contracting authority: withdrawal ends the suspension application, but the annulment action may continue. Costs may be reserved rather than immediately charged. As a tenderer: after withdrawal, the suspension application loses admissibility. Maintain your annulment action and request costs be charged to the adverse party.
Ask yourself
As a contracting authority: have you assessed whether to withdraw the contested decision? Are you aware the annulment action may continue? As a tenderer: have you filed both a suspension application and an annulment action? After withdrawal, have you maintained your annulment action?
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 →