A social security debt is a discretionary exclusion ground — automatic exclusion without a weighing is insufficient reasoning
The Council of State annuls an award because the French-speaking Brussels Parliamentary Assembly excluded cleaning company ACTIVA over social security debts without considering its ongoing repayment plan and a contested rectification debt — and without explaining why it exercised its discretionary exclusion power that way.
What happened?
In November 2013 the Assembly of the French Community Commission launched a negotiated procedure without publication for cleaning its premises for 2014-2016. Five companies were consulted, four submitted, including ACTIVA. ACTIVA's ONSS certificate of 12 November 2013 mentioned two debts: a principal debt of €2,604,525.43, for which ACTIVA had a repayment plan with ONSS that was 'strictly respected'; and a second debt of €340,532.67 from rectifications which ACTIVA contested on the merits before the Brussels Labour Court (proceedings introduced on 15 May 2012, still pending). The analysis note of 9 December 2013 proposed to exclude ACTIVA 'for non-compliance with selection criteria' with as sole reasoning: 'the ONSS certificate mentions a debt of €2,604,525.43, to which rectifications of €340,532.67 are added which are the subject of a principal contestation (infraction of article 18.2 of the specifications)'. The Bureau of the Assembly followed on 13 December and awarded to BSC CLEANING. ACTIVA went to the Council of State with as sole plea a defect of reasoning. Article 61, § 2, 5° of the Royal Decree of 15 July 2011 makes the social security debt clearly a DISCRETIONARY exclusion ground — the contracting authority has discretion. Anyone who uses that discretion to exclude must specially motivate that choice under the law of 29 July 1991 on the express motivation of administrative acts. Here the contracting authority did not do so: it mentioned the principal debt without referring to the running repayment plan; it mentioned the rectification debt as 'contested' without explaining why the contestation was ignored; and from the motivation it was unclear whether it relied on one or on both debts. The Council of State annuls both the exclusion of ACTIVA and the award to BSC CLEANING. The contracting authority is ordered to pay €175 in costs.
Why does this matter?
Social security debts are a classic obstacle in larger cleaning and security contracts. Many contracting authorities treat them as an automatic exclusion, but the regulation says otherwise: it is a 'may' ground, not a 'must' ground. Anyone who excludes must show the weighing in the motivation — including the presence of a repayment plan or judicial contestation. For bidders who work on their social security situation, this judgment opens a clear defence line.
The lesson
If you want to exclude a bidder for social security debts: first read the full certificate. Does the bidder have a repayment plan? Does it contest part on the merits? Then explicitly state in your motivation why you do not consider these circumstances decisive — and which of the two debts (or both together) underpins your decision. Never settle for 'there is a debt on the certificate, so excluded'.
Ask yourself
If you are about to exclude a bidder for social security: can you point in your award report to where you mention whether a repayment plan is running (or not), or a judicial contestation is pending (or not), AND why that is not decisive in your concrete weighing?
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 →