Negotiated procedure 'lighter' than an open one? Not for qualitative selection — that step is mandatory
The Council of State annuls an award by the Ixelles municipality for distributing its town magazine because the tender contained no qualitative selection criteria — an obligation that also applies to the negotiated procedure with publicity.
What happened?
On 30 June 2014, Ixelles' municipal council launched a contract for distributing the bi-monthly magazine Info-Ixelles and various flyers in residents' mailboxes. Two-year term (extendable to three), estimated at €88,000 (VAT included) and €132,000 if extended. Procedure: negotiated with Belgian publicity, with a price schedule. Four bidders submitted offers: JOBELIX, GROUPE FOES, BPost and INBETWEEN AGENCY. On 25 August 2014 the council excluded none, rejected BPost's offer and awarded the two-year contract to GROUPE FOES. JOBELIX challenged the decision before the Council of State. One ground: no qualitative selection criteria in the tender. The municipality argued that Article 58 KB 15/07/2011 does not 'expressly' require setting selection criteria for negotiated procedures. The Council disagreed. Article 58 §1 requires contracting authorities to assess candidates against both (1) access rights (Articles 61-66) and (2) qualitative selection criteria (Articles 67-79). For open and negotiated-with-publicity procedures, setting a minimum level is mandatory. Article 40 requires criteria to be listed in the contract notice. Ixelles had set no qualitative criteria and conducted no qualitative selection — and access-rights checks cannot substitute. It could not be ruled out that GROUPE FOES would have failed had criteria existed. Annulled.
Why does this matter?
Many contracting authorities believe the 'lighter' negotiated procedure exempts them from the structured steps of an open one. That is wrong for selection. In a negotiated procedure with publicity, you must: (a) set effective qualitative selection criteria in the tender and the contract notice, (b) set minimum levels, and (c) actively assess candidates against them before comparing offers on award criteria. Skipping this step makes your award legally vulnerable — not ideal for a contract worth €88k–€132k.
The lesson
When preparing a negotiated procedure with publicity, never assume you can skip qualitative selection. Set financial, economic, technical or professional criteria with explicit minimum levels, list them in the contract notice and tender, and assess every candidate before comparing offers on award criteria. Checking access rights (tax certificate, social security certificate) is not the same as qualitative selection.
Ask yourself
Open your tender for the negotiated procedure: can you immediately point to three or four qualitative selection criteria with explicit minimum levels? If you only see access-rights requirements, the qualitative selection is missing.
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 →