AZ Diest sends rejected HVAC contractors to the Council of State, which declares itself without jurisdiction — and makes the hospital pay the costs for it
The temporary partnership DTO–Delta Thermic challenged before the Council of State the award to Imtech of the HVAC and sanitary works for AZ Diest’s new hospital building, exactly as the hospital’s notification letter indicated; on 18 November 2022 the Council held that a hospital non-profit is not an administrative authority and that it therefore lacks jurisdiction, but placed the costs — a 400-euro roll fee, a 24-euro contribution and a 770-euro procedural indemnity — on the hospital because of the confusion caused by its erroneous statement of the available remedies.
What happened?
The non-profit association Algemeen Ziekenhuis Diest tendered a contract for the supply and installation of HVAC and sanitary systems for a new hospital building. The specifications called the hospital ‘contracting authority’. On 4 October 2022 the board of directors awarded the contract to Imtech. The notification of 5 October 2022 to the unsuccessful bidders stated that they could apply to the Council of State for suspension under extreme urgency and for annulment. DTO and Delta Thermic, which had tendered as a temporary partnership, did so on 20 October 2022 — and on the same day, as a precaution, also served a summons in summary proceedings before the president of the court of first instance in Leuven. At the hearing of 14 November 2022 the hospital itself raised the objection that it is not an administrative authority within the meaning of article 14, § 1, of the coordinated laws on the Council of State. The Council, presided by chamber president Paul Lemmens, followed that reasoning. Article 24 of the remedies act of 17 June 2013 designates the Council of State as review body when the contracting entity is an authority within the meaning of article 14, § 1, and the ordinary courts when it is not. A private-law association that cannot take decisions binding on third parties is not an administrative authority — even if it was set up or recognised by the public authorities, is subject to their control or performs a task of general interest. That the hospital applied public procurement legislation changes nothing: that legislation also applies to private persons, and an award decision merely allocates a contract to bidders who voluntarily sought a contractual relationship with the contracting entity. Nor could the hospital’s reference to the Council of State in its notification create jurisdiction. The objection was found serious and the application dismissed. On costs, however, the Council drew a clear line: the confusion the hospital had created by wrongly stating the remedies justified placing all costs on it — a roll fee of 400 euros, a contribution of 24 euros and a procedural indemnity of 770 euros, payable to the applicants. The summary proceedings in Leuven remained pending.
Why does this matter?
For anyone tendering for contracts of hospitals, colleges, care homes or other non-profits that apply public procurement law, this judgment is both a warning and a reassurance. The warning: the Council of State has jurisdiction only when the contracting entity is an administrative authority, and a private non-profit does not become one by calling itself ‘contracting authority’ in the specifications or by applying the act of 17 June 2016. The test remains whether the body can take decisions binding on third parties. A hospital non-profit cannot, however much it serves the general interest, so the dispute belongs before the president of the court of first instance. The reassurance: DTO and Delta Thermic had sensed this and simultaneously launched summary proceedings in Leuven, so they lost nothing. And the Council did not let the hospital get away with a notification that sent bidders to the wrong court: the costs, procedural indemnity included, landed on the contracting entity even though it formally won. That is a concrete sanction for a mistake that is common in practice, because model specifications and standard letters mention ‘Council of State’ without a second thought. The judgment fits a consistent line — compare judgment no. 243.068 on a college non-profit and the later judgments nos. 255.355 and 264.596 on hospitals — but stands out for its costs ruling, which puts responsibility where it belongs.
The lesson
For bidders: before challenging an award, check what the contracting entity legally is. A non-profit, even a hospital or college that calls itself ‘contracting authority’ and applies public procurement law, is as a rule not an administrative authority; the ordinary courts (the president of the court of first instance, in summary proceedings) are then your review body. Do not rely blindly on the remedies clause in the notification letter. When in doubt, do what DTO and Delta Thermic did: launch both procedures at once within the fifteen-day standstill period, so that the competent court is seised in time whatever happens. If your application is dismissed for lack of jurisdiction after an erroneous notification, expressly ask that the costs be placed on the contracting entity. For private contracting entities: state the correct review body — the court of first instance, not the Council of State — in your specifications and notifications, and do not copy model clauses from public authorities. A wrong statement does not create jurisdiction, but it does cost you the roll fees and the procedural indemnity of the party you sent astray.
Ask yourself
Do you know whether the contracting entity you intend to sue can take decisions binding on third parties — the test for an administrative authority — or is merely a private non-profit applying public procurement law? Did you verify the remedies clause in the notification rather than take it at face value? When in doubt, do you consider seising the Council of State and the president of the court of first instance simultaneously, so that the standstill period does not slip away? If the Council declares itself without jurisdiction after an erroneous notification, do you ask for the costs to be placed on the contracting entity? And as a private contracting entity: does your notification name the ordinary courts as review body, or do you unwittingly send rejected bidders to the Council of State — with the costs order that follows?
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 →