Annulment of evening market domain concession award in Blankenberge — deviation from minimum bid amount after opening of tenders violates equality and patere legem principle
The Council of State annulled the award of a concession for the exploitation of seven evening markets in Blankenberge, finding that the city violated the principles of equality and patere legem by disregarding the minimum bid amount of €50,000 per year after all three tenderers had bid below that minimum.
What happened?
The city of Blankenberge put out a domain concession for the exploitation and organisation of seven evening markets (2022-2026). The specifications set a minimum bid amount of €50,000 per year as concession fee. The procedure fell outside public procurement and concession contract legislation. Six award criteria were provided (150 points total): organisation plan (40), concession fee (40), sustainability (20), experience (20), cooperation with local traders (20) and communication plan (10). Three candidates submitted offers, all below the minimum bid. A fourth interested party — VZW A. — did not submit an offer precisely because the minimum was too high. After opening, the city council decided to waive the minimum bid requirement (invoking an 'unforeseen circumstances' clause) and proceeded to evaluate all candidates. J.M. was ranked first with 133/150 points and the concession was awarded for €25,000 per year — half the minimum. The Council of State accepted the standing of VZW A. despite not having submitted an offer, as the minimum bid requirement had prevented her from doing so. On the merits, the Council held that designating an amount as 'minimum' in principle indicates an essential requirement creating a legitimate expectation. After opening of tenders, the concession-granting authority can no longer deviate from this minimum without violating the equality principle. The city should have halted the procedure. The award was annulled. A claim for compensatory damages was rejected for lack of concrete substantiation. Costs of the annulment proceedings (€400 + €24 + €770) were charged to the city; costs of the damages claim (€400 + €24) to the applicants.
Why does this matter?
This ruling confirms that even domain concessions falling outside public procurement and concession contract legislation are subject to the principles of equality, transparency and patere legem. Setting a 'minimum' bid amount creates a legitimate expectation: potential candidates may assume they must bid at least that amount. After opening, the authority cannot waive this minimum without violating equality — even if all tenderers bid below it. The argument 'everyone was treated equally' fails because the deviation deters candidates who did not submit offers precisely because of the minimum. Notably, the Council granted standing to a party that did not submit an offer, precisely because the specification requirement prevented it.
The lesson
As concession-granting authority: if you set a minimum bid amount, respect it. After opening of tenders, you cannot waive it without violating equality. If no offer meets the minimum, halt the procedure and restart with adjusted terms. An 'unforeseen circumstances' clause cannot override an essential specification requirement. Never justify with the argument that all tenderers were treated equally — the inequality lies with candidates who did not bid because of the minimum. As a candidate: if a minimum bid amount prevented you from submitting an offer, you may have standing to challenge the award even without having tendered. For damages claims: a provisional amount of one euro without concrete substantiation is insufficient.
Ask yourself
As concession-granting authority: did you include a minimum bid amount? Are all offers above it? If not, did you halt and restart? Can you substantiate any deviation? Did potential candidates signal they were deterred by the minimum? As a candidate: is your intended bid below the minimum? Did you notify the authority? If claiming damages, did you provide concrete substantiation in the application?
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 →