An authority that did not know the winner needed a licence cannot say 'the rival should have warned us'
The Council of State annuls the award of parking-meter emptying to Apcoa Belgium because Apcoa, since a 2012 amendment, did not hold the required private security licence — a public order law the authority itself should have checked at selection.
What happened?
In 2013 the City of Oudenaarde launched a negotiated procedure without publication for emptying parking meters and transporting and processing cash — estimated at €24,793.29 excl. VAT under article 26, §1, 1° of the Public Procurement Act of 15 June 2006. Three firms were invited: NV Apcoa Belgium, NV G4S Cash Solutions (applicant) and BVBA Optimal Parking Control. Two bid: Apcoa at €19,505.20 incl. VAT and G4S at €31,460. On 25 November 2013 the City awarded to Apcoa. G4S filed for annulment. Core claim: since the amendment of 29 March 2012 to the Act of 10 April 1990 on private and special security, a security undertaking licence is required for transporting money for third parties. Apcoa did not have one. The City only asked the federal Home Affairs department in June 2014 — after the appeal was lodged — whether Apcoa was allowed to perform the service. On 5 August 2014 the Private Security directorate answered no: the contract involves security activities for third parties requiring a licence Apcoa lacked. The City's defence: the specifications did not list the licence as a requirement, Apcoa met the bid requirements, and G4S should itself have flagged the licence obligation. The Council rejects that. The licence requirement under the 10 April 1990 Act is a matter of public order touching the very core of the contract — it determines whether the contractor may execute the contract at all and shapes the bid price (a firm without licence costs can bid lower). The City should have considered the licence at the selection of firms to invite — which it did not, as it admits. That the specifications did not mention the licence is irrelevant: an authority cannot offload its ignorance of public order law onto another bidder. G4S not having filed an interim claim or notified the Minister does not deprive it of legal interest: it competed against a bidder who should not have been invited and could not have been awarded the contract. The Council remains the proper court even though the one-year contract was already largely executed.
Why does this matter?
For bid managers: if you know a competitor lacks a legally required licence, you can raise it after award — even if the licence was not in the specifications and you gave no 'warning'. More importantly, this arrest confirms that sectoral public-order legislation (private security licences, recognised contractor classes, accreditation for certain services) is implicitly part of the selection conditions — even when nowhere in the specifications. For authorities: for every new contract you must check what sectoral law applies, not just the general procurement rules. Ignorance is no defence.
The lesson
As an authority: before every award check whether sector-specific licences or accreditations are legally required to perform the contract (private security, environmental, transport, VAT status for specific services, etc.). Ask the competent administration if in doubt. List those requirements in the specifications and verify them at selection. As a bid manager: build a checklist of licences your competitors in a given sector must hold — and check via the CBE or the competent authority that the winner actually holds them.
Ask yourself
Take a contract you just bid on or just awarded. List: which licences or accreditations does the contractor legally need to perform (private security? environmental? transport? VAT-specific?)? Are they explicitly in the specifications? Did you verify the winner/your own firm actually holds them? Failure to check is a latent ground for annulment.
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 →