A minister signs off on the negotiated procedure, but the full government should have decided — four years later, the award is annulled ex officio
The Council of State annuls ex officio the award to Marsh of the third-party liability insurance for Walloon airports, because the Minister for Airport Policy alone approved the choice of the negotiated procedure while the estimate for this joint procurement exceeded the 290,000 euro threshold for which the full Walloon Government was competent.
What happened?
In October 2012, the operators of Walloon airports and aerodromes (Charleroi, Liège, Cerfontaine, Spa, Saint-Hubert) designated the Walloon Region to procure on their joint behalf a third-party liability insurance contract under article 19 of the 1993 Public Procurement Act, in the special sectors. On 2 January 2013, the Director-General of the Airport Operations Directorate wrote to the Minister for Airport Policy: 'The total annual premium is of the order of 350,000 euros excluding VAT, the Walloon Region's share around 90,000 euros. The total premium should exceed the European publication threshold of 400,000 euros.' The Minister approved alone on 17 January 2013. The contract was published in the Belgian Official Bulletin and the Official Journal of the EU. Five candidates applied; after qualitative selection, the Region awarded on 8 July 2013 to Marsh, for a final amount of 240,587 euros. Aon Belgium challenged. The Council raises ex officio a ground that overrides all others. Article 14 §1 of the Walloon Government decree of 17 July 2009 requires Government approval — not Ministerial approval alone — for procurement procedure choices above 290,000 euros for services through negotiated procedure with publication. Article 14 §5 specifies that for threshold calculation, the entire expenditure resulting from the contract project must be considered. The Minister's defences — that the actual award amount was 240,587 euros, and that for a joint contract only the Walloon share counted (90,000 euros) — were rejected. The threshold refers to the estimate, not the final award amount; the actual amount cannot retroactively determine competence. And even if only the Walloon share counted, the four-year potential duration brought it above 290,000. The Minister exceeded his competence; the award is annulled. Costs of 175 euros to the Region.
Why does this matter?
This case is not about poorly weighted criteria or an unexpected exclusion. It is about something many contracting authorities easily overlook: the internal allocation of decision-making powers. When the Council annuls a procedure four years after the award because the wrong person approved the choice of procedure, the damage is substantial. For bidders, this is a ruling that shows where to look for a successful ground: not only the substance of the specifications or the evaluation, but how the procedure was chosen and who specifically approved it. For contracting authorities: the estimate determines the competence level, not the eventual award amount. And for joint procurements or multi-year contracts, total expenditure is decisive, not the per-year or per-party share.
The lesson
Before you choose a procurement procedure for a contract above the average thresholds in your internal allocation of competences: check whether the estimate — not the expected award amount — exceeds the level requiring approval by a higher body. For joint procurements and multi-year contracts: calculate total expenditure across the full duration and all participants. Document the calculation and keep the record showing that the competent body has given approval — that document can be decisive in later litigation.
Ask yourself
Does your decision on the choice of procedure rest on a single person (minister, director, municipal college)? Compare the estimate with the thresholds in your internal regulation or government decree. If the estimate is above the threshold for individual decision — for example, 290,000 euros for the Walloon Minister, or another amount in your context — then the collective body must decide, not the minister or administrator alone.
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 →