Refusing to bid because the specifications are 'clearly unlawful' and then complaining — the Council calls that a lack of diligence
A competitor that filed no application for the reissued helihaven concession and only sought suspension four months after publication came up empty — anyone who genuinely considers a tender specification unlawful must first raise it with the authority or the Council, not let the deadline lapse and then complain.
What happened?
Since 2005 the municipality of Knokke-Heist held a concession for the operation of a heliport in Westkapelle. After successive transfers (Crown Heliservice → Heligroup → Knokke Heliport) it was due to end on 31 August 2014. A first 2014 award was contested in extreme urgency by Heliventure FTO; the municipality withdrew it and stopped the procedure, citing a revised spatial vision in which 'there would be no place for the heliport at its current location'. The heliport effectively closed on 31 August 2014, but in September 2014 the municipality extended the concession by six months (also contested in vain). On 5 December 2014 it adopted an amended concession document and published it the same day in the Bulletin of Tenders. Two parties applied (Helixense and Knokke Heliport); Heliventure did not. On 20 February 2015 the concession went to Knokke Heliport, and on 16 April 2015 Heliventure attacked that award. In addition, on 3 February 2015 — two months after publication — it sought separate suspension of the concession document itself, which is the procedure at issue here. Urgency rationale: Heliventure argued that losing this 'reference contract' (estimated at €27,500 per year) caused damage, and that it could not bid on a procedure whose 'antecedents conflict with public order rules'. It pointed to receiving the full administrative file only on 15 January 2015. The Council brushed this aside. Heliventure had deliberately chosen not to apply — without ever arguing that the terms of the concession document made application impossible. The alleged damage therefore stemmed primarily from its own conduct. Moreover, the concession document was published on Friday 5 December 2014, with an application deadline of 23 December 2014. Heliventure let that deadline lapse and only acted more than a month later. The argument 'we did not have the full administrative file until 15 January' did not convince: anyone who deemed the procedure 'clearly unlawful' could have raised it before the deadline — with the authority or with the Council. The required diligence was lacking. At least one of the cumulative conditions for suspension was unmet and the claim was rejected.
Why does this matter?
Firms that see a tender as 'clearly unlawful' sometimes reason: 'I don't want to be complicit, so I'll skip the bid and complain once the award is made.' This arrest closes that route. Anyone who considers a tender unlawful must act in time — within the application period, first with the authority itself and if needed with the Council. Waiting until after the deadline and then complaining couples to a loss of diligence that undermines urgency.
The lesson
If you suspect a tender is unlawful and consider not bidding: document why bidding is impossible and file a reasoned complaint with the authority before the application deadline. If necessary, also file at that same moment a suspension request against the specifications themselves. Don't wait until after the deadline and certainly not until after the award — you will face a diligence problem that kills urgency.
Ask yourself
Have you seen a tender in the past year that you judged 'impossible to participate in' and filed no formal complaint before the deadline? Document, even now, why you did not bid and write to the authority — not because that still gets you a suspension, but as a reflex for next time.
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 →