Asking for a tariff exemption after award: the Council of State sends you to the civil courts
The Brussels CPAS got no relief at the Council of State when it asked Bruxelles-Propreté to apply a tariff exemption during negotiations and after award – the Council declared itself incompetent: both refusals are civil matters, not administrative ones.
What happened?
On 25 April 2019 the CPAS of Brussels launched a negotiated procedure without prior publication for a new framework agreement for household waste collection and processing in its institutions – the existing contract with Bruxelles-Propreté ran out on 31 August 2019. On 23 May 2019 Bruxelles-Propreté (the Regional Cleanliness Agency) submitted a bid based on the tariffs of the Brussels-Capital Government decree of 22 December 2011, without applying the exemption provided in article 10. On 28 May the CPAS asked for a new offer "taking the exemption into account", invoking article 10 §1 2° (institutions approved by the communities for collective social housing of orphans, young people, elderly or disabled persons). On 4 June 2019 Bruxelles-Propreté refused: the CPAS did not meet the criteria. On 15 July 2019 Bruxelles-Propreté formalised the refusal (first contested act): the legal person signing the contract was the CPAS itself, not the approved institutions; moreover a public procurement entails additional obligations (deposit, payment terms) that preclude the exemption. On 11 September 2019 – under pressure because the current contract was ending – the CPAS nevertheless awarded the contract to Bruxelles-Propreté for €111,856.33 VAT included, for 12 months, without the exemption. But the CPAS maintained its position. On 16 September the CPAS formally demanded Bruxelles-Propreté apply the exemption in performance. On 30 September Bruxelles-Propreté refused again (second contested act): a contractual modification would breach article 37 of the 14 January 2013 Royal Decree and the principles of equality and non-discrimination – besides, price revision is excluded by article 11.4.1 of the specifications. On 13 January 2020 the CPAS filed a Council of State action against both acts. The Council rejected both actions on the same ground: lack of jurisdiction. On the first act: Bruxelles-Propreté's refusal to adjust its bid during negotiations is a civil, unilateral act of a bidder – "the undertaking of a bidder to perform the contract on the basis of the tender documents and the conditions it presents" (art. 2, 15° of the 17 June 2016 law). Even though Bruxelles-Propreté is an administrative authority, here it acted as an undertaking within article I.1, 1° of the Economic Code, subject to competition rules. No administrative act = no Council of State jurisdiction. On the second act: once the contract was signed, this is a dispute about contract performance – and therefore about a civil right within article 144 of the Constitution, falling exclusively to the ordinary courts. The Council lacks jurisdiction. Request rejected, CPAS pays €200 court fee and €20 contribution.
Why does this matter?
This ruling draws a sharp line between what you can bring to the Council of State and what goes to the civil courts. For contracting authorities and bidders alike the lesson is the same: anything that happens within a negotiated procedure (refusal to adjust a bid, refusal of a discount, maintaining pricing) is a civil matter – not a unilateral administrative act. And anything that happens after award about contract performance – tariff changes, application of an exemption, clause interpretation – is a civil matter for the civil courts. Anyone trying to bring it to the Council of State simply accumulates procedural costs. The ruling also confirms a broader point: even when your counterpart is an administrative authority, that does not change its position once it acts as a bidder or as a contractor.
The lesson
If you have a dispute with a contracting authority about the content of a bid during negotiations, or with a contractor about the application of a clause after award: the Council of State is not the right court. Go to the ordinary civil court. The Council only rules on unilateral administrative acts that stand outside or above the contract – not on the refusal to adjust within the procedure or within the contract.
Ask yourself
Is your dispute about (a) a selection or award decision as a unilateral act? Then the Council of State. (b) A refusal to adjust the bid during negotiations, or about performance terms after award? Then the civil court.
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 →