A services concession does not oblige you to conduct a price examination — even if prices differ markedly
The Council of State rejects EMG's claim against the Belgian State concerning the IPC audiovisual concession and explicitly confirms that neither the concession law nor the principles of due care, equality or competition trigger an obligation to conduct a price examination in concessions — a key difference from public procurement regulation.
What happened?
The Belgian State (represented by the Prime Minister) issued a concession for the audiovisual and technical services in the International Press Centre (Résidence Palace, Brussels). Duration 10 years, estimated value €8M based on the average annual net turnover of the incumbent concessionaire from 2013 to 2021. The concession has a special structure: financial flows in two directions. The concessionaire pays a 'concession fee' (sliding percentage of net turnover, starting at 12% up to €300,000 and decreasing 1% per €100,000 bracket), with a guaranteed minimum of €22,000/year. The State pays the concessionaire a monthly 'operational fee' for guaranteeing equipment availability. Award on the basis of most economically advantageous offer: 40 points quality, 60 points price (40 operational fee, 5 extra discount on concession percentages, 5 federal discount percentage, 10 list of unit prices). Sui generis placement procedure with negotiations. Two bidders, BAFOs submitted. On 24 May 2023, awarded to the competitor. EMG, the incumbent, filed for extreme urgency on five pleas. The second plea is the standout: EMG argued the Belgian State had failed to conduct a price examination despite 'striking price differences' (e.g. for 'graphic designer per hour', 'sign-language interpreter for a full day', and 'multi-camera event capture'). The contracting authority should have examined prices on grounds of due care, equality and competition. The Council expressly rejects this: 'Neither [the concession law] nor the Royal Decree on concession placement contains a regulation regarding a price or cost examination, as is the case with public procurement regulation.' Given the specific financial structure of this concession (two opposing financial flows plus unit prices outside the operational fee), evaluation per the formula in the descriptive document suffices. The fifth plea concerned the reasoning under the sub-criterion 'team experience': both bidders received 10/10 on the basis of a brief motivation. The Council: brief reasoning is not necessarily a lack of substantive assessment — equal scores do not imply identical CVs, only comparable quality. Other branches of the fifth plea (PTZ broadcast cameras, single point of contact, proactive client acquisition) failed for lack of legal interest: even if all critiques succeeded, EMG could not bridge the 5.71-point gap. Application rejected, EMG bears costs (€770 procedural indemnity plus court fee).
Why does this matter?
Many bid managers and legal advisers assume that public procurement rules also apply to services concessions. They do not. The concession regime is minimalist: no mandatory price examination, no compulsory control on abnormal prices, no article 36 of the Royal Decree to fall back on. An applicant before the Council seeking to enforce a price examination on a concession will fail on legal foundation. For contracting authorities: in a concession you have no obligation to examine prices, but a general duty of due care — and 'striking price differences' do not automatically activate it. This judgment confirms once again the Council's strict separation of concession and procurement regimes.
The lesson
For concessions (services or works): first verify under which regime the contract falls before formulating a suspension plea. A concession? Then you search in vain for an obligation to examine prices or test for abnormal pricing — none exists in the concession law. Contracting authorities can voluntarily announce a price examination in the descriptive document; if so, they bind themselves via patere legem. If they don't, only the duty of care remains, and that is thin ground.
Ask yourself
Before drafting a price-examination plea: is this a public contract (RD 18/04/2017 or 18/06/2017) or a concession (RD on concession placement)? Has the descriptive document announced a price examination? What is your point gap to the winner — can you bridge it even in the most favourable scenario? If not, drop the plea and focus on aspects that can actually flip the ranking.
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 →