A day-care non-profit is not an administrative authority: the extreme-urgency action against the architecture contract founders on jurisdiction — and on a withdrawal neither party disclosed
Three unsuccessful design teams sought the suspension, under extreme urgency, of the award to CZAAR of the architecture contract for the renovation of the De B’Engeltjes day-care centre in Herent, but the Council of State rejects the action on two grounds: the non-profit had already withdrawn the contested decision on 15 July 2026 — something neither party disclosed beforehand, which the Council calls ‘misplaced’ and ‘disloyal’ as regards the defendant — and a non-profit that cannot take decisions binding third parties is, prima facie, not an administrative authority, so the competent review body is the ordinary court rather than the Council.
What happened?
The non-profit association Kinderdagverblijf De B’Engeltjes launched a contract for the ‘design, supervision of execution and assistance at acceptance for the renovation of the De B’Engeltjes day-care centre […] Herent (Veltem)’. Eight candidates came forward, including the three applicant companies — anonymised in the judgment as K., I. and A. On 24 June 2026 the chair of the management body announced by email that ‘after thorough consultation and discussion with the board it has been determined which design best matched [their] expectations’. The attached decision was equally brief: ‘After comparing the submitted designs and the assessment criteria, the board prefers CZAAR’s proposal.’ On 7 July 2026 the three firms sought suspension of that award under extreme urgency. The procedural calendar was set by order of 8 July and the case came on at 11 a.m. on 28 July 2026. Only at the hearing did it emerge that the non-profit had withdrawn its decision back on 15 July 2026. Neither party had notified the Council. The defendant considered this irrelevant, given its objection that the Council lacked jurisdiction — a stance that, according to the Council, prejudges its ruling and is ‘not only misplaced but also disloyal’. The applicants knew of the withdrawal just as well: it was they who produced the 15 July decision at the hearing, without any justification for their own silence. In any event, the action for suspension had thereby lost its object and was inadmissible. The Council nonetheless addresses the jurisdictional objection, because it bears on costs. Article 24, first paragraph, of the law of 17 June 2013 splits procurement review between two courts: the administrative litigation section of the Council of State where the contracting entity is an authority within the meaning of article 14(1) of the coordinated laws, and the ordinary court where it is not. A private-law association that cannot take decisions binding third parties is prima facie not of the nature of an administrative authority — not even where it was created or recognised by the government, is subject to government control, or performs a task of general interest. The non-profit does call itself the ‘contracting organisation’ in the tender documents, but it is a private-law legal person, and prima facie nothing shows it can bind third parties unilaterally; the applicants did not even claim so. That it applied the public procurement rules in preparing and taking the award decision changes nothing: those rules can also apply to private-law persons, and the contested decision merely awards or withholds a contract from bidders who voluntarily sought a contractual relationship with the non-profit. The Council concludes that it appears, at first sight, to lack jurisdiction, and that this serious objection likewise justifies rejecting the action. The costs ruling follows from both findings together. The provisionally established lack of jurisdiction justifies placing the roll fees and the contribution to the Budget Fund for second-line legal aid on the applicants: a roll fee of 600 euros, one third each, and a contribution of 26 euros. But the combination of that lack of jurisdiction and the withdrawal means there is no ‘prevailing party’ within the meaning of article 30/1(1), first paragraph, of the coordinated laws. No one, therefore, receives a procedural indemnity. The Council did not rule on the award decision itself, nor on its notably terse reasoning.
Why does this matter?
For anyone bidding for contracts from non-profits — day-care centres, schools, care homes, cultural institutions, hospitals — this judgment is a warning that costs both money and time. Everything turns on a distinction that practice constantly blurs. Whether an organisation is a ‘contracting authority’ under procurement law, and whether it is an ‘administrative authority’ within the meaning of article 14(1) of the coordinated laws on the Council of State, are two different questions with two different answers. The first determines which rules it must follow when awarding the contract. The second determines which court you may turn to when it breaks them. Article 24 of the law of 17 June 2013 expressly ties the choice of review body to the second question. The test the Council applies is old and narrow: can the legal person take unilateral decisions that bind third parties? If not, it is prima facie not an administrative authority — and it makes no difference that it was created or recognised by the government, that it is subject to government control, that it performs a task of general interest, or that it duly applies the procurement rules. That last point deserves emphasis, because it is exactly what misleads bidders: tender documents referring to ‘the contracting organisation’, award criteria, lots and a standstill period look like a public procedure. In terms of the award rules, they are one. The court, however, sits elsewhere. The bill makes the lesson concrete. The three firms bear 600 euros in roll fees and a 26-euro contribution between them, and that is the smallest part of the damage: the days spent in an extreme-urgency procedure before the wrong court cannot be recovered. Whoever misidentifies the review body loses above all the speed the whole extreme-urgency mechanism is meant to deliver. The judgment also contains a rare, sharp passage on the parties’ duty of loyalty to the court. The contested decision had been withdrawn thirteen days before the hearing, and both camps knew it. The non-profit thought it irrelevant because it considered the Council to lack jurisdiction anyway — a stance which, the Council says, prejudges its ruling and is ‘not only misplaced but also disloyal’. The applicants, who themselves produced the withdrawal decision at the hearing, offered no explanation for their silence. The Council attaches no express sanction to these findings, but the result is that nobody receives a procedural indemnity: through the concurrence of the lack of jurisdiction and the withdrawal, there is simply no prevailing party. Compare that with the usual outcome on withdrawal, where the contracting authority bears the costs as the party disguisedly annulled — here, the withdrawal earns the applicants nothing.
The lesson
Before bringing a review action, check who you are facing, and use the right test. Not: does this organisation apply procurement law? But: can it take unilateral decisions that bind third parties? If the answer is no — and for most non-profits it is, even where they were created, recognised, subsidised or supervised by the government and perform a task of general interest — then your review body is the ordinary court, usually in summary proceedings, and not the Council of State. Do not be misled by tender documents calling the body a ‘contracting organisation’, or by a notification pointing to the Council of State: such labels do not bind the court. If in doubt, weigh the risk of an extreme-urgency procedure in which you first lose days and then have to go to the civil court anyway — the standstill period keeps running meanwhile. And notify the Council immediately when the contested decision is withdrawn; waiting until the hearing gains you nothing and counts against you in the conduct of the proceedings. If you are a non-profit or another private-law contracting entity, the mirror-image lesson matters just as much. The Council of State lacking jurisdiction does not mean you are in the clear: the award rules still apply and the civil court can puncture your award just as effectively. Raise the objection loyally, too: concealing a withdrawal because you believe the court lacks jurisdiction anyway is not appreciated. And mind your reasoning — ‘the board prefers CZAAR’s proposal’ after ‘thorough consultation’ tells a rejected bidder nothing about how the assessment criteria were applied. The Council did not reach that point here, but another court may well do so.
Ask yourself
Do you know whether the organisation that rejected your tender can take unilateral decisions binding third parties — the test that determines whether it is an administrative authority under article 14(1)? Do you realise that ‘contracting authority’ in procurement law and ‘administrative authority’ in the laws on the Council of State are two different concepts, and that article 24 of the law of 17 June 2013 ties your review body to the second? Have you verified whether the reference to the Council of State in the notification or tender documents is actually correct, rather than relying on it blindly? Do you know what the standstill period is doing while you stand before the wrong court? And do you report a withdrawal of the contested decision to the court at once, or wait until the hearing?
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 →