Council of State lacks jurisdiction over contract award by private educational institution (ASBL) — status as contracting authority does not confer status as administrative authority — no binding decisions vis-à-vis third parties
The Council of State rejected the suspension application under extreme urgency by Arcadus Architecte and Artera Architectes against the award decision by ASBL Institut Notre-Dame de Loverval (services contract for architect selection — sports hall construction and renovation), the Council lacking jurisdiction as the respondent, a private educational institution, is not an administrative authority within the meaning of Article 14 §1 of the Consolidated Acts — the status of contracting authority under the 2013 Act does not necessarily confer the status of administrative authority, and a public procurement award decision does not create binding obligations vis-à-vis third parties.
What happened?
ASBL Institut Notre-Dame de Loverval, a subsidized private school in Loverval, tendered a services contract for an architect to design a sports hall and renovate buildings. Seven offers were submitted. The applicants' offers were declared irregular and the contract was awarded to a joint venture. The applicants filed a suspension application under extreme urgency. The respondent raised lack of jurisdiction: it is not an administrative authority. The Council confirmed its established case law: a private educational institution, created and managed by private persons, is not an administrative authority when awarding a procurement contract. The status of contracting authority does not automatically confer administrative authority status. A private law entity only qualifies as an administrative authority when it exercises imperium — making unilateral binding decisions vis-à-vis third parties in the exercise of public authority prerogatives. A procurement award decision does not create binding obligations vis-à-vis third parties. The application was rejected for lack of jurisdiction. Disputes fall under the ordinary courts.
Why does this matter?
This ruling confirms that the status of contracting authority under procurement law does not automatically confer the status of administrative authority subject to Council of State jurisdiction. Private educational institutions that award procurement contracts are not administrative authorities because such decisions do not create binding obligations vis-à-vis third parties. Disputes must be brought before the ordinary courts.
The lesson
As a tenderer: when bidding on contracts from private educational institutions, check the specifications for the competent court — disputes fall under ordinary courts, not the Council of State. As a private educational institution: identify the competent court in your procurement documents.
Ask yourself
Is the contracting authority a private educational institution? Have you verified that the Council of State has jurisdiction before filing a challenge there?
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 →