ISS withdraws its action against the Bpost cleaning contract after a settlement: each party bears its own costs
The cleaning company ISS Facility Services challenged Bpost’s award of lots 1 and 2 of the cleaning contract (special specifications no. 2021-1-021) to Laurenty, but discontinued its action after a settlement reached between the parties; the Council of State took note of it, with ISS bearing its own roll fees and neither party owing the other a procedural indemnity.
What happened?
Bpost, the public-law limited company, awarded lots 1 and 2 of a public services contract to Laurenty on 8 April 2022. The contract — set out in special specifications no. 2021-1-021 — concerned the cleaning activities at Bpost, of both the buildings and the vehicles, and the operational management, including replacements, of Bpost’s cleaning staff. The award decision was communicated to ISS Facility Services by registered letter and email on 11 April 2022. ISS, which had also bid, brought an action for annulment of that decision before the Council of State on 10 June 2022. The procedure did not run to the merits. By a letter of 22 August 2022 ISS stated that it wished to discontinue its action. That same letter showed that the parties had reached an agreement: ISS would bear the roll fees it had paid and neither party would owe the other a procedural indemnity. Bpost confirmed that agreement in a letter of 24 August 2022. Deputy auditor Marie Lambert de Rouvroit drew up a report under article 59 of the general rules of procedure, and the parties were summoned to the hearing of 14 December 2022. Nothing stood in the way of the discontinuance. The Council of State took note of the discontinuance and ordered ISS to pay the costs: a roll fee of 200 euros and a contribution of 22 euros. In accordance with the agreement, it awarded no procedural indemnity.
Why does this matter?
This short judgment illustrates the most serene way to end a procurement dispute: a settlement between the bidder and the authority, followed by a discontinuance. The gain for both parties lies not in a ruling on the regularity of the award — there is none — but in the control of costs. Where the losing party would normally owe a procedural indemnity to the other side, ISS and Bpost agreed that each bears its own costs and that no indemnity is owed either way; the Council respected that agreement and limited ISS’s liability to its own roll fee and contribution. It shows that the procedural indemnity is not automatic but an item the parties may dispose of in an amicable settlement. For anyone challenging a public contract, this is a useful reminder that an action before the Council of State can also be a lever to reach a negotiated solution, without a final judgment being necessary.
The lesson
If you are considering challenging an award decision, keep the amicable route in mind: a settlement with the authority can end the dispute without a ruling on the merits, and you can agree that each party bears its own costs and that no procedural indemnity is owed either way. Record such an agreement in writing and have it confirmed by both parties — here ISS and Bpost did so by letters of 22 and 24 August 2022 — so that the Council of State takes it into account when noting the discontinuance. Do note that, even on a discontinuance, you in principle bear your own roll fees and contributions (here 200 euros roll fee and 22 euros contribution). As an authority, a settlement with a discontinuance is an efficient way to take a contested contract off the judicial agenda; the procedural indemnity is negotiable there.
Ask yourself
Have you examined whether an amicable settlement with the authority can end the dispute faster and more cheaply than a procedure on the merits? If you discontinue after an agreement, have you recorded in writing who bears which costs and that neither party owes a procedural indemnity? Do you realise that, even on a discontinuance, you in principle bear your own roll fees and contributions? And as an authority: is a settlement with a discontinuance an acceptable way for you to close a contested award?
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 →