100 to 23 points for advertising on Ghent’s street furniture: in a concession, an award criterion built on a fictitious digitisation scenario is not ‘thin air’
Company J. challenged the twenty-year concession for advertising on Ghent’s street furniture because the financial award criterion (95 of 100 points) was calculated on a fictitious replacement of thirty advertising units by digital screens, while the concession holder remains free never to digitise at all — but the Council of State held that such a fictitious scenario fits the economic freedom and risk inherent in a concession, that the guaranteed base fee carried the most weight, and that the city had correctly applied its own formula.
What happened?
The City of Ghent tendered a services concession for advertising on street furniture within its territory, including the supply, installation, replacement and maintenance of that furniture (TDW2025/008). The concession ran for twenty years, was advertised nationally and at European level through an open procedure and comprised two lots: advertising on street furniture, and an optional lot ‘advertising in and around car parks’. Two award criteria applied to lot 1. The first, ‘the financial fee for the grantor’, carried 95 points and was calculated as a weighted sum: ten times the base fee the bidder would pay the city each year, plus ten times a fictitious annual fee in a scenario in which twenty static and ten scrolling advertising units had been replaced by digital screens, plus an adjustment for the financial proposal for an optional ‘End Scenario 2’. The specifications expressly called this ‘a purely fictitious calculation’ implying ‘no obligation or specific expectation’: under article IV.1.4 the concession holder decided autonomously how many locations to digitise, with no minimum or maximum. The second criterion, unit prices for ‘movements’ of shelters and information boards, carried 5 points. Company J. spotted the problem during the procedure and asked on the Q&A forum whether the method would not encourage bidders to offer ‘deliberately overstated amounts’ for digital screens without later installing them. It proposed requiring at least thirty digital units in year one, and counting digitisation over nineteen rather than ten years. The city stood firm: the method was ‘transparent, and equal for everyone’, it saw no added value in a minimum — ‘a considered choice’ — and the ten-ten split would ‘normally have little or no impact on the ranking’. Two tenders came in: from company J. and from company B., the incumbent. On the financial criterion company B. reached a weighted sum of 238,602,120 against 45,294,900 for company J., giving 95 against 18 points pro rata. Both scored 5 points on the second criterion: final score 100 to 23. According to the award report, the gap stemmed on the one hand from a ‘considerably higher’ annual base fee, counted twenty times, and on the other from a digitisation fee for fixed posters ‘of a substantially different order of magnitude’. The latter reflected a different strategy: company B. planned very limited digitisation at strategic locations and could therefore offer a high amount per converted unit, which gave it ‘considerable leverage’ in the formula. Although the concession rules impose no price examination, the city questioned company B. by letters of 2 March, 24 March and 20 April 2026 about its fees and its reading of article IV.1.8 of the specifications, which made other uses of the street furniture subject to permission. Company B. expressly confirmed that the digitisation fee was owed as soon as a fixed poster was digitised, regardless of whether permission under article IV.1.8 had been requested or granted. The city concluded that the fees were not abnormally high and that the tender was compliant, adding that company B. would still have obtained the highest score even without its digitisation fee. On 16 July 2026 the college awarded lot 1 to company B. and abandoned lot 2. Company J. was notified on 31 July 2026 and sought suspension under extreme urgency on 17 August 2026; the hearing took place on 9 September 2026. The Council first declared the application inadmissible insofar as it targeted the implicit decision not to award to company J.: even if its pleas were serious, the city retained the right to abandon the award with reasons and put the concession back on the market. It then examined first the second plea, on the lawfulness of the award criterion itself. Article 55, § 1, of the Concessions Act does not speak of ‘the most economically advantageous tender’ but of an ‘overall economic advantage for the contracting authority’. A concession confers a right of exploitation, in which the concession holder enjoys a degree of economic freedom and bears the operating risk — with reference to the Court of Justice’s Sharengo judgment. Criticising the criterion because the bidder remains free to digitise or not ‘seems to overlook the nature of a services concession’. Nor was the criterion a ‘fictitious thin-air criterion’: it attached great weight to the base fee, which is certain and unconditional, discouraging speculation. For a twenty-year concession in a fast-moving technological sector it was not unreasonable to use a fictitious, pre-announced number of replacements for half the term. Both bidders had the same information, and the city’s refusal to follow company J.’s suggestions on the forum did not make the criterion unlawful. The argument that the contract was aleatory within the meaning of article 5.141 of the Civil Code concerned a civil right and belonged before the ordinary courts. The first plea — that company J., through its ‘thorough digitisation strategy’, would ultimately pay much more over twenty years — ran aground on patere legem: the city was bound by its own formula. Moreover, company J.’s own confidential financial note showed that its expected annual fee from year two, including its own digitisation, remained ‘far below the base fee of the chosen bidder’. Questioning only company B. was not unequal treatment: as regards the level of its fees and the compliance of its tender, company J. was not in a comparable position. The third plea — company B.’s tender should have been declared void for abnormal fees, or a formal price examination should have taken place — failed because the issue was not prices paid by the authority but fees offered to the city by the bidder, and because the concession rules have no price examination like the procurement rules. The city had examined the fees thoroughly and assessed them reasonably, and nothing showed that the tender had been altered after the questioning. Finally, the fourth plea targeted a single sentence in the award report: company B.’s criminal record extract was ‘not blank, but this is not a ground for exclusion’. The Council found that the entry fell in any event outside the five-year (mandatory exclusion) and three-year (discretionary exclusion) periods, so there was no reason to exclude or to give further reasons. None of the pleas was serious. Company B.’s intervention was admitted and the application dismissed. Company J. bore the 200-euro court fee, the 26-euro contribution and procedural costs of 770 euros payable to the city; company B. bore the 150-euro fee for its intervention.
Why does this matter?
Concessions in which the private partner pays the authority — advertising on street furniture, events, catering, car parks — are increasingly awarded on a financial criterion. This judgment shows how far the authority may go in modelling an uncertain future. The core: the Concessions Act does not require ‘the most economically advantageous tender’ as the procurement act does, but an ‘overall economic advantage for the contracting authority’, and according to the parliamentary preparatory works and recital 68 of Directive 2014/23/EU it leaves the authority broad freedom in organising the procedure. Because in a concession the holder bears the operating risk and is free in its operating choices, the authority cannot remove that freedom by imposing a minimum — and need not do so. It may compare tenders on the basis of a pre-announced fictitious scenario, as long as the criterion does not rest entirely on fiction. Decisive here was that the base fee, certain and unconditional, carried the most weight. A second important point concerns price examination. The Council confirms that the concession rules contain no compulsory general or specific price examination like the procurement rules, and that an exceptionally high fee paid to the authority is something other than an abnormally low price the authority must pay. Even so, the City of Ghent did well to question its winner three times: precisely that voluntary, documented check — with a confidential note annexed to the award report — enabled the Council to find that the assessment remained within the bounds of reasonableness. Finally, the judgment is a lesson in litigation. The applicant had correctly raised its objection to the formula on the forum, but then submitted a tender under that same formula, and built its main plea on the hypothesis that it would pay more over twenty years. Its own confidential financial note contradicted that hypothesis.
The lesson
For authorities awarding concessions: you may build a financial award criterion on a fictitious scenario where the future is uncertain and the concession holder is free in its operating choices — but announce the scenario in advance, explain why you use it, and make sure a certain and unconditional component, such as a fixed base fee, carries the most weight. If you receive an exceptionally high fee, you are not obliged to carry out a price examination, but a thorough written questioning of the bidder and a reasoned (possibly confidential) note annexed to the award report will make your decision resistant to challenge. Have the bidder confirm that its commitment is unconditional, including where the specifications require permissions. And when recording exclusion grounds, do not just write ‘not blank’ but also why that entails no exclusion. For bidders: raise an objection to the scoring formula on the forum, but if the authority does not follow it, you must choose — challenge the specifications, or play by the rules. Arguing after the award that you would score better under a different calculation runs into patere legem. And do not build a plea on a hypothesis your own tender contradicts: the Council of State can read the confidential documents in the file.
Ask yourself
Does your financial award criterion for a concession rest on a fictitious scenario, and did you announce and justify that scenario in advance in the specifications? Does a certain and unconditional component (such as a fixed base fee) weigh heavily enough in your formula to discourage speculation? Have you had an exceptionally high fee justified in writing, and recorded the outcome of that questioning in a (confidential) note annexed to the award report? As a bidder: after the authority rejected your objection to the formula on the forum, did you consider challenging the specifications themselves rather than competing and complaining afterwards? Is the hypothesis on which you build your appeal consistent with what your own tender says? Where a criminal record is not blank, does your award report also state why no ground for exclusion applies?
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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 →