A settlement ends the battle over the Veurne carpool car park — but Adiel Maes keeps the costs
Road builder Adiel Maes, which had challenged before the Council of State the award of the Veurne carpool car park to RTS (261,091.38 euros incl. VAT), concluded an amicable settlement with the Flemish Region while the case was pending; the Council read its counsel’s letter as an abandonment of the proceedings and ordered Adiel Maes to pay the costs of 175 euros.
What happened?
On 21 September 2011 the Roads and Traffic Agency of the Flemish Region, West Flanders division, awarded the contract ‘Veurne – construction of a carpool car park’ (specifications 1M3D8J/11/30) to RTS BVBA for 261,091.38 euros including VAT. The West Flemish contractor NV Wegeniswerken Adiel Maes filed an annulment action against that award decision on 23 December 2011. The Region filed a statement of defence, the auditor drew up a report and the case was listed for the hearing of 4 September 2012. Meanwhile, however, the parties had found each other outside the courtroom: by a letter of its counsel of 15 June 2012, Adiel Maes informed the Council of State that ‘an amicable arrangement and settlement has meanwhile been concluded between the parties concerned’ and that the file could be struck. The Council read that communication as an abandonment of the proceedings, recorded it and ordered the applicant to pay the costs of the annulment action, assessed at 175 euros.
Why does this matter?
Not every procurement dispute ends with a ruling on the merits — a substantial share is settled along the way. This judgment shows the procedural closing piece of such an arrangement: the applicant communicates the settlement, the Council records the abandonment, and the file closes. Two practical points stand out. First, the content of the settlement remains entirely out of view — what Adiel Maes obtained from the Region appears nowhere in the judgment. Second: whoever abandons bears the costs of their own action, even if the arrangement perhaps came about precisely because the authority conceded something. Whoever negotiates a settlement should therefore expressly include the litigation costs in the deal. For authorities, the case illustrates that a pending annulment action is no obstacle to reaching a pragmatic arrangement with an unsuccessful tenderer.
The lesson
For tenderers: an annulment action is also a negotiating instrument — but when settling, expressly agree who bears the litigation costs and roll fee, because upon abandonment the Council places them on you by default. Also ask yourself exactly what the settlement covers (damages, future contracts, termination of all proceedings). For authorities: an amicable arrangement pending litigation can buy off years of procedural risk; make sure the settlement covers the abandonment of all remedies.
Ask yourself
In settlement negotiations, do you expressly include the allocation of roll fees and litigation costs in the agreement? Does your settlement cover all pending and future proceedings concerning the same award? And do you realise that upon abandonment the Council places the costs on the abandoning party by default?
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 →