Two suspension actions against the same award decision on the same hearing day — what does the Council do with the second?
When Misanet and Köse Cleaning each demand a suspension on the same hearing day against the same Brussels award decision, the Council suspends the award once (in judgment 241,061) and adjourns the second case sine die, so that Köse remains protected if the suspension in 241,061 is later lifted.
What happened?
On 9 February 2018 the Brussels Region awarded the same cleaning contract to Jette Clean for the second time (CSC No GRF-335). Two losing bidders reacted in parallel: Misanet (ranked fourth) brought the suspension action that led to judgment 241,061, and Köse Cleaning (ranked second) brought its own suspension action (case A. 224.890/VI-21.200), in which Misanet itself acted as intervening party. The Council heard both cases at the hearing of 13 March 2018 before the VIth chamber in interim proceedings. In judgment 241,061, delivered on 21 March 2018, the Council suspended the second award decision — for inadequate price verification with respect to Köse and an untenable motivation with respect to Jette Clean (see the summary of 241,061). In this judgment 241,062, delivered the same day, Köse's own suspension request was addressed. The technical puzzle the Council had to solve: through 241,061 Köse had de facto already obtained what it asked for — the award is suspended. But what if that suspension is later lifted? For example because Misanet does not bring an annulment action within the deadline, or because its annulment action is rejected on procedural grounds? Then the Region could resume execution of the award, and Köse would suddenly stand without protection — even though its own suspension action had been correctly brought. The Council solves this by 'adjourning the case sine die'. This means: the suspension is neither granted on the merits nor refused on the merits. The case remains pending, ready to be relisted should the suspension in 241,061 be lifted or Misanet's annulment action fail. In this way 'the judicial protection of the applicant' (Köse) is secured. The Council also keeps four documents confidential (the offers of Köse and Jette Clean and the correspondence of 27 November and 11 December 2017 between the Region and Jette Clean), which at this stage are not necessary for resolving the dispute.
Why does this matter?
In practice this judgment is a textbook piece of procedural hygiene. When two different losing bidders bring parallel suspension actions against the same award decision, a double suspension is pointless (the award is already suspended), but a simple rejection of the second action carries risks for the second applicant. The 'remise sine die' is the elegant way out. For bidders considering whether — alongside another loser — they should themselves still bring their own suspension, this is relevant. The standard reflex 'the other will do it' is procedurally risky: if the other applicant fails to push the action through to substantive resolution (withdrawal, inadmissibility, no annulment action), you stand without protection if you have no procedure of your own. Köse has made the right choice here by bringing its own action and is procedurally protected today without itself receiving a substantive ruling. For contracting authorities the converse insight applies: an award against which multiple parallel suspension actions are pending cannot simply be re-executed even after a suspension in one case. The other cases remain, in 'sine die' mode, a possible exit for the other applicants.
The lesson
File your own suspension action if you have lost, even when you know that another loser is doing the same. Relying on someone else's procedure is procedurally vulnerable: if the other party withdraws, fails formally, or does not bring an annulment action, you are left without protection. Your own suspension action — even at the price of a court fee — gives you your own place in the judicial order and can, as here, lead to a 'sine die' adjournment that protects you should the first suspension later be lifted.
Ask yourself
You have lost the contract and know that another losing bidder will bring a suspension action. You are hesitating whether to act yourself. Ask yourself one question: what happens if that other applicant later withdraws its action, fails on an inadmissibility objection, or does not bring an annulment action? Answer: the award becomes executable again, and you have no remedy left to intervene. That is reason enough to bring your own procedure.
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 →