Fluvius awards the data-centre contract to a third party, then withdraws: the extreme-urgency action loses its object — but Fluvius pays the costs
After Fluvius System Operator had awarded the ‘Housing Datacenter’ public contract to a third party by decision of 25 February 2026, and NV D. had sought suspension under extreme urgency, Fluvius withdrew the award decision itself; the action thereby lost its object and became inadmissible, but the Council of State placed the costs — roll fee, contribution and a procedural indemnity of 770 euros — on Fluvius.
What happened?
Fluvius System Operator, the Flemish distribution network operator, placed a public contract titled ‘Housing Datacenter’ (tender reference FLU24IT010_2). By decision of 25 February 2026 Fluvius awarded that contract to a third party. NV D., an unsuccessful bidder, brought an action on 13 March 2026 and sought suspension of that award decision under extreme urgency. By orders of 17 and 23 March 2026 the procedural calendar was set in consultation with the designated member of the auditorate; the hearing took place on 22 April 2026, with chamber president Geert Debersaques reporting and first auditor Ines Martens giving an opinion concurring with the judgment. No substantive assessment followed. After the hearing on the extreme-urgency action had first been set for 1 April 2026 by the order of 17 March 2026, Fluvius withdrew the contested decision by a decision of 19 March 2026. With that withdrawal there was no longer any award decision to suspend: the Council of State found that the extreme-urgency action had become without object and therefore inadmissible, and dismissed it. On costs, the Council ruled against Fluvius: the defending party was ordered to pay the costs of the extreme-urgency action, set at a roll fee of 200 euros, a contribution of 26 euros and a procedural indemnity of 770 euros owed to NV D.
Why does this matter?
This judgment confirms a pattern of great practical importance to unsuccessful bidders: extreme-urgency suspension is often the decisive lever in procurement litigation, even when the case is never decided on the merits. By quickly bringing an extreme-urgency action, NV D. forced Fluvius into a choice before the first scheduled hearing. Fluvius chose to withdraw its own award decision, so that the action lost its object. For the authority this looks like a clean way out — no ruling on the merits, the procedure can be redone — yet the cost bill still follows the logic of a loss: the Council places the roll fee, the contribution and a procedural indemnity of 770 euros on Fluvius. For the applicant, the action means the contested award to the competitor has fallen away and its costs are reimbursed. The judgment is also a reminder that network operators such as Fluvius act as contracting entities and fall under the same procurement supervision by the Council of State.
The lesson
If you are an unsuccessful bidder, extreme-urgency suspension remains the most powerful and fastest tool to block an award to a competitor. If the authority then withdraws its award decision, do not abandon the action assuming there is nothing to gain: expressly claim your procedural indemnity and costs. Here the Council dismissed the action for loss of object, but ordered Fluvius to pay the full costs — roll fee (200 euros), contribution (26 euros) and procedural indemnity (770 euros). As an authority, the lesson is that withdrawal is a valid way to reconsider a contested award and redo the procedure, but that this way out usually costs you the costs and the procedural indemnity as the losing party, even without a ruling on the merits. Expect a withdrawal under the pressure of an extreme-urgency action to come with a price tag.
Ask yourself
As an unsuccessful bidder for an ICT or infrastructure contract, did you use the extreme-urgency procedure to block the award to a competitor in time? Do you know that a withdrawal by the authority makes your action without object, but that you can recover your procedural indemnity and costs provided you expressly claim them? And as a contracting entity — including as a network operator: do you realise that withdrawing a contested award usually leaves you, as the losing party, bearing the costs and the procedural indemnity, regardless of any ruling on the merits?
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 →