Challenging a non-profit's award before the Council of State? Wrong court — time wasted
The Council of State declares itself incompetent to hear an emergency suspension against the award of lot 7 (sanitary cells) of a Ciney nursing home: the contracting non-profit is not an 'administrative authority' under article 14, §1 of the coordinated laws, and the competent court is the civil court.
What happened?
The non-profit Instituts Médico-sociaux de Ciney (I.M.S. Ciney) tendered an extension of a nursing home; lot 7 covered sanitary cells. Three firms bid: Menuiserie Adelaire Marcel (M.A.M.), ALCOMEL and Jansen Finishings. M.A.M.'s bid was rejected — first on selection, then on price abnormality — and the contract was awarded to ALCOMEL on 24 June 2015. M.A.M. filed an emergency suspension at the Council of State. The contracting authority raised a competence objection: it was a private-law non-profit born of private initiative, governed solely by the 1921 ASBL law, not subject to public oversight. Under article 24 of the law of 17 June 2013 (applicable below European thresholds via article 33), the Council of State is only competent if the contracting authority falls under article 14, §1 of the coordinated laws. The Council applied four criteria — public initiative, public oversight, exercise of public power, binding decisions against third parties — and concluded that I.M.S. Ciney met none. The suspension was rejected for lack of competence. M.A.M. was ordered to pay €700 procedural costs plus €200 dépens; ALCOMEL €150 dépens. The intervention by ALCOMEL was also rejected (e-mail filed, but no registered confirmation by the next working day).
Why does this matter?
Bidders instinctively run to the Council of State when they lose. But the Council's competence depends on the legal nature of the contracting authority, not on the 'public procurement' label on the tender. A non-profit can be subject to procurement law and still not be an 'administrative authority' before the Council of State. If that is the case, you need the civil court — and if your emergency deadline has run out or you chose the wrong court, you are out of options. This judgment is fourteen years old but the test is still daily practice.
The lesson
Before challenging an award, check the legal nature of the contracting authority. A private-law entity (non-profit, company, foundation) is not automatically an 'administrative authority'. Four criteria are decisive: (1) public or private initiative; (2) subject to public oversight or governed by public bodies; (3) endowed with public power; (4) able to take binding decisions toward third parties. Receiving subsidies does not count — actual control is required.
Ask yourself
Who signs the tender? A non-profit, foundation, municipal company, intercommunal or social welfare association? Have you verified that this entity is governed by public bodies or endowed with public authority? If not — Council of State or civil court? Decide that before you write the petition, not after.
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 →