'Public contract' in the title, concession in the facts — only the second matters
The Council of State dismisses LED AD's appeal against the award of an LED-screen concession to Cityscreen because the city legally treated the contract as a concession, despite the term 'public contract' in the heading of the award decision.
What happened?
In March 2021, the Ninove municipal council approves the conditions for a 'Domain concession for the supply and placement of two LED screens on the public domain of the city of Ninove, with a view to public and private operation'. Concession fee: minimum 1 euro per year. Broadcasting time: 50/50 split between city and concessionaire. Duration: 15 years. Three award criteria: Visibility (20%), Quality of the screens (50%), CMS user-friendliness (30%). Two bidders: Cityscreen Group Belgium and LED AD. Cityscreen wins with 91 out of 100, LED AD scores 88. The difference lies mainly in the CMS criterion: with Cityscreen you have to create 'playlists', with LED AD the system does this automatically (in short: a less user-friendly CMS for Cityscreen, but it gets more points — 25 vs 18). On screen quality, Cityscreen scores 48/50 versus 45/50 because the placement and maintenance are 'more extensively described in the supplied documents'. LED AD takes the case to the Council of State. UDN suspension: dismissed in September 2021. The case then runs through two years of merits proceedings. LED AD throws everything into its plea: violation of Article 4 of the Public Procurement Act 2016, duty to state reasons, principle of due care, principle of reasonableness. The Council of State intervenes upfront. First ruling: this is not a public contract but a concession for services within the meaning of Article 2, 7°, b) of the Concessions Act of 17 June 2016. The decisive reason: Article 6 of the concession agreement places the operating risk on the concessionaire (who must sell the commercial broadcasting time itself). The fact that the city had mentioned 'public contracts' in the heading of its award decision? 'A material error.' The legal regime is not determined by the labeling, but by the substance. Result: the plea alleging violation of the Public Procurement Act 2016 fails in law — that act does not apply to concessions. LED AD revises halfway through its reply memo and removes every reference to Article 4. Too late: the pleadings remain focused on the duty to state reasons and the principle of transparency. On those points the Council rules: in concessions the contracting authority has broader assessment discretion. The award criteria were sufficiently clearly described. The assessment elements that LED AD presented as 'hidden sub-criteria' are not — they require no separate weighting. A descriptive evaluation in words, coupled with a points score in reasonable proportion, is an 'acceptable and rather customary assessment method'. LED AD is ordered to pay 400 euros in registration fees, 40 euros in contribution and 924 euros in procedural indemnity to the city. Intervening party Cityscreen receives 150 euros for its intervention.
Why does this matter?
The distinction between a public contract and a concession for services is no academic hair-splitting — it determines which legal framework applies, what remedies you have, and how much assessment discretion the contracting authority gets. The criterion is always the same: who bears the operating risk? In a concession it is the counterparty (they earn their money through operation), in a public contract the government pays for a service. For bid managers this is crucial: don't build your appeal on the Public Procurement Act 2016 if the contract is in fact a concession — then your plea fails in law, regardless of the substantive arguments. And vice versa: don't be misled by incorrect labeling in the award decision.
The lesson
Check before filing an appeal: who bears the operating risk? If it is the counterparty, it is a concession and the Public Procurement Act 2016 does not apply — build your pleas on the Concessions Act, the duty to state reasons and the general principles of good administration. A 'public contract' label in the heading of the contested decision changes nothing.
Ask yourself
Does the winning party receive payment from the government (public contract) or must they earn their money from the operation itself (concession)? Build your pleas on the correct legal framework.
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 →