No suspension, no continuation, yet the bill for the province: Walloon Brabant withdraws the copier contract and pays the costs
After the Council of State had rejected the extreme-urgency suspension of the award to Ricoh, Systemat did not request the continuation of the proceedings within the time limit, so the Council recorded the discontinuance of the action — but because the province of Walloon Brabant had meanwhile withdrawn its award decision, it nevertheless bore all the costs, including a procedural indemnity of 770 euros.
What happened?
By a decision of 21 August 2025, the province of Walloon Brabant awarded a public contract for the rental and maintenance of multifunctional photocopiers and printers for its administration, schools and institutions to Ricoh Belgium. The decision was communicated to Systemat by registered mail and email on 26 August 2025. Systemat, an unsuccessful bidder, sought annulment and suspension under extreme urgency. By judgment no. 264.428 of 3 October 2025 the Council of State rejected the suspension application and reserved the costs. That judgment was notified to Systemat the same day. When Systemat did not request the continuation of the proceedings within the thirty-day period and did not ask to be heard either, it was, under article 17, § 10, of the coordinated laws on the Council of State, presumed to discontinue its action; the auditor, by a note of 20 November 2025, requested the application of the procedure of article 11/3 of the general procedural rules, and the registry notified Systemat on 24 November 2025 that the chamber would record the discontinuance unless it asked to be heard. On costs, one fact was decisive: by email of 19 September 2025 the province had informed the Council that it had withdrawn the contested decision on 18 September 2025. The Council held that this withdrawal justified placing the costs, including the requested procedural indemnity, on the province. The Council recorded the discontinuance of the action and ordered the province to pay the roll fee of 200 euros, the contribution of 26 euros and the procedural indemnity of 770 euros.
Why does this matter?
The case illustrates two things that often come together in procurement litigation. First, the procedural trap of article 17, § 10: a party who does nothing after a rejected suspension is presumed to discontinue its action — the annulment claim then lapses without a ruling on the merits. Anyone who wishes to pursue the action on the merits must therefore actively and timely request the continuation of the proceedings. Second, the judgment shows that ‘discontinuance’ does not necessarily mean ‘empty-handed’. Because the province had itself withdrawn its award decision, it nevertheless bore the costs and the procedural indemnity. The disappearance of the contested act through a withdrawal here works as a disguised annulment in the applicant’s favour: even though the case procedurally ends in a discontinuance, the authority that withdraws its decision is treated, on costs, as the losing party.
The lesson
For bidders: a rejected extreme-urgency suspension is not the end, but do not let the clock run out. If you wish to pursue the action on the merits, expressly request the continuation of the proceedings within thirty days of the notification of the judgment; if you do not, you are presumed to discontinue. If the authority withdraws its decision in the meantime, do claim your procedural indemnity: the withdrawal counts as a disguised annulment in your favour. For authorities: withdrawing a contested award is a legitimate way to correct a procedure, but it is not a cost-free exit — you then bear the costs and the procedural indemnity, even where the applicant itself discontinues the action.
Ask yourself
Have you, as a bidder after a rejected suspension, expressly requested the continuation of the proceedings within thirty days of the notification if you wished to pursue the action on the merits? Do you realise that inaction gives rise to a presumption of discontinuance? When the authority withdraws its decision, have you claimed your procedural indemnity, knowing that the withdrawal counts as a disguised annulment in your favour? And as an authority: do you realise that withdrawing a contested award leaves you, even without a ruling on the merits and even where the applicant discontinues, bearing the costs 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 →