A 'selection' by a selection committee is not automatically a challengeable decision — wait for validation by the competent body
The Council of State declares the application of Step Group and Mimob against the selection of a competing project on the Prés de Tilff site inadmissible: a 'décision de sélection' of a parity selection committee is here only a preparatory act, and the final decision of the competent bodies did not yet exist when the petition was filed.
What happened?
The municipality of Esneux and the General Tourism Commission (CGT) jointly own the 'Prés de Tilff' site and want to sell it or grant a real right over it. On 30 August 2018 they conclude a cooperation agreement with NV IMMOWAL to launch a call for expressions of interest (AMI) — explicitly not a public procurement procedure since no price is paid to candidates and no need is set. The general principles of publicity, transparency and equal treatment do apply. Five candidacies are submitted. On 6 September 2019 the selection committee — composed in parity by representatives of the municipality and of CGT/IMMOWAL — invites two finalists to negotiate on price: the joint venture Step Group/Mimob, and the duo Carlier/Simonon. Step Group/Mimob does not improve its price; Carlier/Simonon submits a new price proposal on 13 September. On 17 October 2019 the selection committee unanimously selects the Carlier/Simonon project. IMMOWAL informs Step Group/Mimob by letter of 23 October 2019: 'the Selection Committee meeting on 17 October decided unanimously not to select your project'. On 28 October 2019 the applicants receive the reasoned 'décision de sélection de projet'. Step Group/Mimob filed an annulment and suspension request on 23 December 2019 against two acts: the selection decision of 17 October 2019, and a second hypothetical decision 'of unknown date' by which the competent bodies would formally have retained the project. The respondents raise inadmissibility: — First act (committee selection): the selection committee had no mandate to decide finally. The cooperation agreement and the delegation to IMMOWAL only covered 'management' of the procedure and 'analysis and selection' of the offers, not the granting of a property right. Only after the committee's report do the municipal council of Esneux and the General Tourism Commissioner have to 'validate' the transaction. It is therefore a mere preparatory act. — Second act: did not exist at the time the petition was filed. Both competent bodies adopted the validation decision only on 28 May 2020 — five months later. The Council concedes one point to the applicants: communication was indeed ambiguous. IMMOWAL's letter spoke of 'la décision' of the committee, and the 28 October document referenced both contracting bodies in its footer, suggesting the decision had been directly validated. It is understandable that the applicants thought there was a challengeable decision. But the administrative file unequivocally shows that the committee's selection decision can produce effects only after formal approval by the competent bodies. Tellingly, IMMOWAL's letters to the contracting bodies themselves request their 'délibération validant l'opération' and 'décision officielle validant l'opération'. The applicants understood this too: on 25 November 2019 they had already asked Esneux for the municipal council validation decision. Result: — The second contested act did not exist at filing — premature and inadmissible. — The first contested act is a mere preparatory act with no legal effect — not a challengeable administrative decision. The annulment request appears inadmissible; the suspension request consequently as well. Bastien Simonon's intervention is not admitted (no separate interest shown); Thomas Carlier's is.
Why does this matter?
Strictly speaking this judgment is not about a public procurement contract — the AMI was a real-estate operation. But it illustrates a principle that also applies in classic procurement procedures: not every 'decision' is challengeable. With delegated review committees, technical juries or multi-tier contracting bodies, you must check who the competent body is to decide finally and wait for that decision before going to the Council. Filing too early against a review committee report or a technical advisory note risks inadmissibility for prematurity. At the same time this judgment teaches that ambiguous communication by the contracting authority does not automatically extend deadlines — you must assess the legal status of the communication yourself.
The lesson
If you receive a notice that 'the committee' or 'the jury' did not retain your candidacy, ask yourself first: does this body have decision-making power, or is this an advice to a higher body? Ask the contracting authority in writing which decision is final and on what date it was or will be taken. Only when the competent body (municipal council, board, executive committee) has decided do you have a challengeable administrative act. At the same time you must respect the suspension or annulment deadline — so inform yourself in time and ensure you act on the final decision.
Ask yourself
Did you receive a rejection letter speaking of a 'decision' of a committee, jury or working group? Check (1) who signs — a delegated implementer or the competent body? (2) does the specifications/AMI state which body formally decides? (3) does the letter expressly refer to a council, board or executive decision? If the first two clearly point to an intermediate step and the third is missing: you are probably looking at a preparatory act. Wait for the final decision before filing an urgent suspension request or annulment proceedings — otherwise you risk inadmissibility for prematurity.
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 →