A 'concession' without real operating risk is just a public service contract — but if you don't claim extreme urgency, you can't suspend it
Charleroi's public welfare body launched a 'service concession' for managing its food procurement, but the Council of State requalifies it as a public service contract — even though the suspension is still rejected because the application did not mention 'extreme urgency'.
What happened?
On 20 March 2015, the CPAS of Charleroi decided to organise a competitive procedure for what it called a 'service concession': a 'partner' would in the name and on the account of the CPAS run joint procurement procedures for food deliveries (kitchen ingredients for collective kitchens). The selected service provider would not be paid by the CPAS, but would negotiate a rebate from the eventual suppliers and keep part of it — a 'third-party payer' mechanism. SPRL BEST DEAL submitted an offer. On 22 May 2015 the contract was awarded to SPRL AB Restauration. Already on 24 April BEST DEAL had filed a request for annulment with suspension against the original decision to launch the procedure. The central debate was about qualification: is this a service contract (and thus subject to the public procurement law of 15 June 2006) or a service concession (then not covered by the law)? The Council of State sharpens the legal distinction: the services are not delivered to end users but to the CPAS itself, for its kitchen management; and the CPAS gives up the benefit of the rebates in favour of the service provider — which is a 'lost gain' and therefore a form of onerous consideration. Conclusion: this is a public service contract, not a concession. But then comes article 15 of the law of 17 June 2013: in public procurement, the Council of State can only decide on a suspension under the extreme urgency procedure. The heading of BEST DEAL's application did not contain that mention. Result: the suspension request is treated as an ordinary suspension and is therefore inadmissible. AB Restauration's intervention request granted, suspension rejected.
Why does this matter?
Some contracting authorities use the 'service concession' label to escape the strict rules of public procurement law. This case shows that such labelling is not a legal free pass: as soon as the service provider works for the contracting authority itself and the 'risk' is limited to normal business risk, it is a public contract. Equally important: anyone who wants to suspend an award or a preceding decision today must invoke the extreme urgency procedure and put the right mention on the application — otherwise the case fails procedurally.
The lesson
If you challenge a 'concession' suspecting it is actually a public contract: explicitly put 'extreme urgency' / 'uiterst dringende noodzakelijkheid' in the heading of your application. A later requalification by the Council of State no longer helps you if your heading is wrong. And as a contracting authority: don't simply write 'concession' on a structure where the service provider bears no real operating risk and serves no end users — the Council of State will requalify it without much hesitation.
Ask yourself
Before you assess a 'service concession': does the provider receive payment from end users or from the contracting authority? Does the provider really bear the risk of not recouping its investments? If both answers are 'no', ask whether this is in fact a public service contract.
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 →