If you think the selection rules are unfair, file at the Council immediately — don't wait until the winner is in sight
MICAS, the outgoing casino operator of Middelkerke, argued that the municipality's integrated DBFMO design — bundling construction with operation — squeezed solo gambling-hall operators out of the market, but because it attacked the design eighteen months too late instead of at the announcement, the Council of State holds it has no standing.
What happened?
MICAS, a subsidiary of UK-listed Rank Group, has long operated the Casino-Kursaal of Middelkerke. Its concession expires on 31 December 2016. On 16 December 2014, the municipal executive opts for a single integrated market consultation for the succession: design, build, finance and operate a new casino building, with a separate concession for the temporary and new gambling hall — candidates must field a team comprising a Designer, Contractor, Developer and Gambling Hall Operator. The announcement is published in the Belgian Tenders Bulletin on 21 January 2015 and in the EU Official Journal on 24 January 2015. The selection guide of 15 January 2015 confirms the integration: a 15-year concession (extendable to 45) for the operator and a 45-year DBFMO contract for the consortium, split into a fixed and a conditional tranche. The future building is to include a 1,200 m² gambling hall, a 2,000 m² multifunctional venue (1,000 seated/2,000 standing), a 60-room hotel, a 400-person dancing, restaurants and 350 parking spaces. MICAS requests the selection guide by email on 22 January 2015. Then comes the critical step: it does not file a participation request. Three other candidates do, all selected. Instead, MICAS lodges complaints with the provincial governor and the Flemish Minister of Home Affairs against the council's approval of the award guide on 6 July 2015. On 23 November 2015 the governor dismisses the complaint and explicitly informs MICAS of the option to seek suspension or annulment at the Council of State within 60 or 15 days. On 4 December 2015 MICAS files an annulment action and an ordinary suspension against the award guide. By judgment 234,018 of 3 March 2016, the Council declares the suspension inadmissible: in procurement, suspension must go via the extreme-urgency procedure (Article 15 of the Law of 17 June 2013). Meanwhile the procedure rolls on. Two candidates submit offers. BAFO submission is set for 24 June 2016. On 19 May 2016 the council approves the draft contracts — the temporary-and-new gambling hall concession and the DBFMO agreement — with a mandate to the executive for minor amendments. The decisions are notified to MICAS on 25 May. On 1 June 2016 MICAS files an extreme-urgency suspension. Council member Johan Bovin takes the case on 15 June and rules on 30 June. He upholds the second admissibility plea: lack of standing. The reasoning follows the Court of Justice's Grossmann doctrine (12 February 2004) and the eVigilo Ltd judgment (12 March 2015). A challenger essentially seeks the contract for itself. A non-participant in principle has no standing — except where the award design prevented it from bidding, and it challenged those conditions in time. MICAS scores zero on all escape routes. It did not file a participation request; it did not, within the appeal periods, challenge the announcement, selection guide or selection decision; and it does not claim those documents were 'incomprehensible'. The integrated structure — concession plus DBFMO in one project — was on the announcement and selection guide from January 2015. A party that finds such integration 'megalomaniacal' and 'manifestly unfeasible' must raise that during selection, not eighteen months later when the council approves draft contracts. MICAS' subsidiary argument — that the approved drafts soften the original 'stringent conditions' — fails because MICAS does not show that the integration was actually loosened. Bovin notes pointedly that MICAS itself argues in its application that construction and concession are 'an integrated project', which contradicts its own reasoning. The Council also implicitly accepts the municipality's suggestion that MICAS' real goal was delay, in the hope of extending its expiring concession. The action is rejected for lack of standing. The substantive pleas — about the project's content, its 'megalomaniacal' character, public-interest risks — are not examined.
Why does this matter?
This judgment lays bare the rule for incumbent operators or interested market players unhappy with how a contract is structured. Belgian case law applies the Grossmann doctrine strictly: silence during the selection phase and a late reaction once an unwelcome award is in sight forfeits rights. That holds even if the procurement law is fundamentally breached and even where the grounds touch on public order — the Council is explicit that the public-order nature of pleas dispenses with proving an interest in the plea, but not with having standing in the action. For incumbents who see their contract being absorbed into a much wider PPP or DBFMO package they don't fit, the strategic choice is binary: form a consortium and bid, or within 60 days of the announcement file annulment plus extreme-urgency suspension against the announcement or selection guide. There is no third option.
The lesson
When you read an announcement and conclude that the chosen procedure or selection rules effectively exclude you — for instance because a specialised activity is welded to construction, financing or a wholly different field — you have 60 days to take the Council of State route against the announcement itself. Wait until the council or executive takes an award decision or contract approval, and Grossmann case law no longer lets you attack the structural setup. A practical tip from this judgment: use the question-and-answer phase of the negotiated procedure (here point 3.10.2 of the selection guide) to formally raise your concerns. That creates a paper trail, increases the chance of an adjustment, and if litigation is unavoidable, proves that you sounded the alarm in time.
Ask yourself
An announcement in the Bulletin couples your core activity with activities you have never performed (construction, finance, real-estate development) and demands a team you cannot in fact assemble. You consider it unworkable. Ask yourself, before day 60 expires: do we go to the Council of State against the announcement, do we form a team with partners, or do we walk away from this opportunity? A fourth option — react when the award becomes concrete — no longer exists in law.
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 →