A draw is not an award decision: without formal approval by registered letter there is nothing yet to challenge
The Council of State declares an urgent-suspension claim against a draw for concessions on the Eben-Emael military domain inadmissible because the specifications expressly state that allocation only becomes final after formal approval by the competent authority and notification by registered letter — formalities not yet completed here.
What happened?
On the military domain of Fort Eben-Emael, Defence has since 1955 granted concessions for mowing, haymaking and cultivating a number of plots to farmers. One of the applicants, A.R., had inherited that concession from his grandmother and father — a tradition of nearly 70 years. In March 2024, Defence launched a new procedure for four lots, and at the draw of 28 March 2024 one of the lots went to a company that, according to A.R., had actually submitted two bids from the same registered office — which was not allowed under article 6 of the specifications ('une offre au maximum par siège social'). The court of first instance in Liège sided with A.R. and on 18 April 2024 ordered the Belgian State to suspend notification of the draw for lot 2, pending a new regularity review. Rather than re-examining only lot 2, Defence restarted the entire procedure for lots 1, 2 and 3 — with amended specifications in which the contested clause had been replaced by a broader wording allowing several companies with the same physical backer. New bids were submitted on 22 August 2024, and a new draw took place on 29 August. On 13 September the applicants received — on request — anonymised minutes of that draw. Within ten days — on 23 September 2024 — A.R. and J.Z. lodged an urgent-suspension claim against 'the decision of 29 August 2024 concerning the concession […] allocating lots 1, 2 and 3'. Two other farmers (H.M. and O.L., draw winners for other lots) intervened. And there the case immediately ran aground on a procedural question: is there in fact a challengeable act? Defence and Finance argued no. According to article 5 of the specifications, allocation only becomes final 'after approval by the Head of the Infrastructure Division […] or his delegate, notified by registered letter within 14 days'. Article 10 adds that the Receiver 'retains the option not to allocate definitively if the offers appear insufficient or for any other reason he may invoke at his discretion'. No registered letter — no final allocation — no legal act creating rights. The draw and the minutes of 29 August 2024 were therefore no more than an intermediate step. The anonymised copy that counsel had obtained on 13 September 2024 was moreover provided under the Act on transparency of administration — which is essentially something different from a formal notification of an award decision. The Council of State followed that reasoning entirely and dismissed the urgent-suspension claim as inadmissible. The interventions were accepted, but the case itself did not stand because there was nothing yet to challenge.
Why does this matter?
In urgent-suspension cases, timing is everything. Too early = no challengeable act, too late = standstill expired or decision already executed. This ruling illustrates that an intermediate step in the award procedure (draw, provisional ranking, letter of intent) is not an award decision as long as the specifications expressly provide that a later formal confirmation is required. For bidders this means: read the specifications very carefully to know at what moment the challengeable decision arises — often this is only at the registered letter, not at a draw or provisional communication. For contracting authorities it means that the formalities in the specifications (registered notification, approval by a specific body) do in fact determine the legal reality — which is at once a defence line and an obligation.
The lesson
Before lodging an urgent-suspension claim: find in the specifications the article that determines when allocation becomes 'final' and what formality (typically: registered letter from a specifically designated official) is required. A draw, a provisional ranking or an anonymised minute on request rarely amounts to a challengeable award decision. Wait for the right moment — otherwise you lose your claim for inadmissibility, with costs.
Ask yourself
Do the specifications you received contain an article distinguishing the phase of 'final allocation' from earlier steps (draw, award proposal, intent)? Have you received a formal notification by registered letter, or are you building your claim on a minute you yourself requested?
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 →