A 'this RFP is not a public contract' clause doesn't make you a private player — BPOST remains an administrative authority
The Council of State holds it has jurisdiction over BPOST's award of a water-fountain contract (estimated €150,000 over 5 years) to John Martin despite the express RFP clause that 'public procurement legislation does not apply' — but dismisses Aquacare's appeal for lack of interest in its grounds.
What happened?
In March 2015 BPOST launched a negotiated procedure without publication for delivering and maintaining water fountains for its staff — about a hundred units, estimated €150,000 (excl. VAT) over five years. The 'request for proposal' (RFP) explicitly stated: 'This RFP does not fall under a public procurement; public procurement legislation therefore does not apply.' Five offers came in, one excluded as incomplete. After two negotiation rounds and a BAFO from the top 2 (Aqua Vital and John Martin), John Martin won with 79.83 points — Aqua Vital 72.41, Aquacare 70.00. Aquacare took it to the Council of State. First surprise at the hearing: BPOST raised a jurisdictional exception, arguing it's only an 'administrative authority' when carrying out public service missions. The Council swept this away. First counter-argument: BPOST itself had designated the Council of State as the appeal body in its notification. Second: BPOST is a public-law company, and such a company is an administrative authority when acting within its public-service mission. Water supply for staff falls under this — unlike BPOST claims, it's legally indistinguishable from its own example of 'uniform purchases' which it does treat as public procurement. The Council needn't definitively rule on Aquacare's interest in the procurement-law regime, because the substantive grounds fail. First ground: Aquacare complains of a 'disproportionate' linear scoring for price (lowest = 50, second = 40, third = 30...). Problem: BPOST confidentially submits an alternative rule-of-three calculation that would rank Aquacare even WORSE. No interest. Second ground (added at the hearing): Aqua Vital bid 2.13× lower than the most expensive for the 'column model' — Aquacare demands an abnormal-price investigation. But Aqua Vital isn't the winner, John Martin is. Any issue with Aqua Vital's price doesn't touch John Martin's award. Not serious. Application dismissed, €200 + €700 procedural indemnity charged to Aquacare.
Why does this matter?
Two heavy practical lessons. One: a disclaimer in your tender documents that procurement law doesn't apply won't save you if the factual and legal situation points the other way. Public-law companies (BPOST, Proximus, the National Railway, etc.) must realise that most of their purchases fall under the procurement regime, regardless of how they label their procurement documents. Two: as an applicant with a ground about a faulty scoring method or a competitor's abnormal price: ALWAYS check first whether your ground actually improves your position. Attacking a method that under an alternative ranks you even worse = no interest. Challenging a runner-up's price regularity with no impact on the winner = no interest.
The lesson
As contracting authority: don't put a 'this contract doesn't fall under procurement law' clause in your RFP if you're a public-law company and the contract fits your public-service mission — the Council sees through such labels. As applicant: before launching a ground about scoring method or abnormal price, simulate what a 'correct' approach would do with your offer — does it improve your ranking? If not: no interest, no ground.
Ask yourself
Before challenging an award on the scoring method: calculate your score under the alternative method you propose. Is there an improvement? If not, drop this ground — otherwise you risk €700 procedural indemnity for an untenable argument.
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 →