Mouscron withdraws the awarded electrical lot of the day-care renovation: the extreme-urgency action loses its object, but the city foots the bill
After the unsuccessful bidder D.E.I. sought, under extreme urgency, the suspension of the decision to award lot 3 (Electricity) of the energy renovation and extension of the ‘l’Ile aux enfants’ day-care centre to THERSA, the city of Mouscron withdrew that decision itself and notified the withdrawal to all bidders; the action thereby lost its object, and the city, as the party disguisedly defeated, had to bear the 770-euro procedural indemnity and the costs.
What happened?
At its session of 22 December 2025, the municipal college of Mouscron decided not to retain the offer of D.E.I. and to award lot 3 (Electricity) of the public contract ‘Energy renovation and extension of the l’Ile aux enfants day-care centre (PIV 10)’ to THERSA. D.E.I. lodged, on 23 January 2026, an application for suspension under extreme urgency. By an order of 23 January 2026 the procedural timetable was set and the case fixed for the hearing of 10 February 2026. Before that hearing, by a deliberation of 2 February 2026, the city withdrew the contested decision. It notified that withdrawal to all bidders concerned by email and registered letter of 4 February 2026, stating the remedies and the forms and time limits to be observed. By emails of 5 February 2026 the case was adjourned sine die; an order of 14 April 2026 re-fixed it for 27 April 2026. As no bidder sought annulment of the withdrawal decision within the prescribed time limit, the withdrawal could be regarded as definitive, so the action had lost its object. D.E.I. claimed a procedural indemnity of 770 euros. The Council of State held that, by reason of the withdrawal of the contested act, the city must be regarded as the losing party in this dispute and the applicant as the prevailing party, within the meaning of article 30/1 of the coordinated laws on the Council of State. It granted the indemnity claim — which the city did not, moreover, oppose — and held that there was no longer any need to rule. The city bears the costs: the roll fee of 200 euros, the contribution of 26 euros and the procedural indemnity of 770 euros awarded to D.E.I. The judgment was delivered on 28 April 2026 by the VIth chamber sitting in interim relief (Aurélien Vandeburie, councillor of State, acting president; Vincent Durieux, registrar).
Why does this matter?
The judgment shows that the familiar ‘withdrawal scenario’ also plays out when the authority takes back its decision before the Council of State has even ruled on the suspension. D.E.I. held no suspension judgment yet; even so, the withdrawal sufficed to render the action without object. What is decisive is not whether a suspension had already been ordered, but that the contested act disappears: the Council treats the withdrawal as a disguised annulment, so the authority becomes the losing party. For the bidder that means two things. Practically, the contested award is gone and the contract — or the lot — must be redone. Financially, the bidder recovers its procedural indemnity and costs, even without any ruling on the merits of its complaints. The condition the Council consistently checks recurs here too: the withdrawal becomes definitive only once it has been notified to all bidders, stating the remedies, forms and time limits, and no one challenges it in time. For authorities the message is sober: withdrawing a vulnerable award is a legitimate way to correct a procedure, but it is not a cost-free exit.
The lesson
If, as an unsuccessful bidder, you lodge an extreme-urgency suspension action and the authority then withdraws its award decision, do not treat the sequel as a lost cause — even where no suspension was yet ordered. Claim your procedural indemnity (here 770 euros) and your costs: the Council sees the withdrawal as a disguised annulment in your favour and the authority as the losing party. Do check that the withdrawal was notified to all bidders with the remedies, forms and time limits, because that is what makes it definitive and what truly renders your action without object. As an authority, the lesson is: withdrawing a contested award to redo the contract is sensible where it is vulnerable, but you bear the costs and the procedural indemnity, even without a ruling on the merits.
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 — even where no suspension had been ordered? 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 that the authority’s failure to oppose your indemnity claim eases its grant, but that the basis remains the defeat under article 30/1? As an authority: before withdrawing a vulnerable award, do you factor in that you will bear the roll fees, the contribution and the procedural indemnity?
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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 →