Flower war in Antwerp: J.O.S. Hanging Baskets wants Three Lion excluded for disparagement — having just been convicted of the same thing itself
In the battle for Antwerp’s 2.3-million-euro framework contract for flower baskets, towers and boxes, J.O.S. Hanging Baskets tried to have the award to competitor Three Lion suspended with complaints about undersized references and an old cease-and-desist conviction for disparagement, but the Council of State found that a cease-and-desist order is not a criminal offence, that the applicant had itself been convicted of disparaging that very competitor weeks before the judgment — and that even maximum scores on the contested criteria would not have carried it past Three Lion.
What happened?
The city of Antwerp issued a general call for tenders for a framework contract for supplying and maintaining summer flower displays, divided into three lots: flower baskets (estimated at 1,440,000 euros), flower towers (678,400 euros) and flower boxes (182,400 euros), together 2,300,800 euros excluding VAT. Tender document no. GAC/2012/1558 required, as technical capacity, at least three long-term reference contracts ‘with quantities similar to the present tender documents’, and reserved the city’s right to assess financial standing through the annual accounts. At the opening on 29 January 2013 there were three offers per lot: from J.O.S. Hanging Baskets, Three Lion and Michiels. The examination report of 19 February 2013 found the qualitative selection of all three in order, and on 1 March 2013 the municipal executive awarded all lots to Three Lion, which scored the maximum on every award criterion for every lot. J.O.S. Hanging Baskets sought suspension under extreme urgency. Its first plea targeted the selection: the reference contracts of Three Lion and Michiels were far too small, Three Lion had only had public flower displays in its corporate purpose since 2009, both competitors had too little rolling stock according to their accounts, Michiels had allegedly suffered heavy losses in 2008-2009 — and above all: in 2012, for a flower-tower contract in Deurne, the city had itself excluded Three Lion for grave professional misconduct, based on a judgment of the Antwerp Court of Appeal of 14 April 2011 convicting Three Lion of disparaging the competition. The Council of State punctured the complaints one by one. The offers, submitted confidentially, showed that each bidder had concluded at least three long-term contracts since 2009, and the city could accept that Three Lion achieved smaller volumes per reference contract but reached the required quantities per year across several contracts. The rolling stock? Not a requirement of the tender documents. Michiels’ losses? The 2008-2011 accounts showed profit carried forward each year. And the conviction of 14 April 2011? That was a civil cease-and-desist order under the market-practices act, not a conviction for a criminal offence — so the mandatory exclusion ground did not apply, and for the optional ground of grave professional misconduct the applicant did not show that the facts arose in the performance of a professional assignment. That the city had excluded Three Lion in an earlier, separate contract gave J.O.S. Hanging Baskets no rights. Then the coup de grâce: on 21 February 2013 J.O.S. Hanging Baskets had itself been ordered by the Antwerp Court of Appeal to cease disparaging Three Lion, which made its interest in this complaint ‘no longer self-evident’. The second plea — the city had allegedly disregarded an essential part of its file, hence the low scores on criteria two to four — failed on the interest test: J.O.S. Hanging Baskets did not contest its lowest score on the price criterion (40 of the 100 points) and nowhere claimed that the two higher-ranked bidders deserved fewer points, so even maximum scores on the contested criteria could not lift it above Three Lion. The criticism added at the hearing, that the city had calculated with wrong amounts, came too late and was inadmissible — and would moreover affect all offers equally. The application was rejected on 15 April 2013; J.O.S. Hanging Baskets bore 175 euros in costs, Three Lion the 125 euros of its intervention.
Why does this matter?
The judgment refines the law on exclusion on a point often overlooked in practice: not every judicial conviction is a ground for exclusion. A civil cease-and-desist order for disparagement, however unseemly, is not a ‘final conviction for an offence affecting professional morality’ — that requires a criminal conviction. And grave professional misconduct remains a discretionary ground for the authority, not a right of the competitor: that Antwerp had excluded Three Lion a year earlier in another contract did not bind the city for this one. The judgment also shows how the Council reads selection requirements as they stand in the tender documents: three long-term reference contracts with similar quantities — and nothing about rolling stock or machinery, so that argument could not carry any illegality; the city was entitled to accept volumes spread across several simultaneous contracts. The judgment further confirms the interest test the Council applied elsewhere in the same weeks: whoever contests only his own scores without claiming the higher-ranked bidders scored too generously cannot tip the ranking even with maximum scores, and lacks an interest. And the detail that lingers: in a bitter rivalry between two flower suppliers dragging each other to court for disparagement, the applicant’s own fresh conviction undermined the credibility of precisely the complaint with which it sought to eliminate its competitor.
The lesson
For bidders: to have a competitor excluded, qualify the exclusion ground with legal precision. Check whether the conviction you invoke is criminal and final — a cease-and-desist order under the market-practices act does not suffice — and whether the facts arose in professional practice. Do not assume that an earlier exclusion in another contract carries over automatically: every contract gets its own assessment. If you contest scores, also contest the points of those ranked above you, or your plea will fail for lack of interest. And keep your own record clean: your litigation position weakens visibly when you have been convicted of exactly what you accuse your competitor of. For contracting authorities: draft selection requirements carefully, because the Council holds you and the bidders to the letter of the tender documents — requirements not in them, such as minimum rolling stock, cannot be read in afterwards. Document how you assess references, particularly when adding up volumes across several contracts.
Ask yourself
If you argue for a competitor’s exclusion: is its conviction criminal and final, or — as here — a civil cease-and-desist order that fails as a matter of law? Do the facts invoked arise in the performance of a professional assignment? Do you realise an earlier exclusion in another contract does not bind the authority? Do you contest, besides your own scores, those of the bidders ranked above you — and can you calculate that the ranking would then tip? Do you raise all your complaints in the petition, knowing a new point at the hearing is inadmissible? And does your own judicial record withstand the mirror you hold up to your competitor?
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 →