Two procedural errors by the OCMW — yet no suspension, because without a proven impact on the ranking there is no standing
The Council of State refuses to suspend the OCMW Jodoigne's award to TCO Service for meal delivery to Le Clair Séjour, because ISS Catering shows neither through the unverified honour declaration nor through the 'impossible' 10.59% VAT rate that it should have won the contract.
What happened?
In March 2016 OCMW Jodoigne launched a joint procurement with the City for the supply and preparation of meals for the 'Le Clair Séjour' nursing home, the residential-services facility and the municipal crèche 'Les Lutins'. Estimated value: 315,000 euro VAT included. Five bids were received in May 2016, including from incumbent ISS Catering and from TCO Service. On 28 June 2016 the OCMW awarded the contract to TCO for 342,942.56 euro VAT included. ISS, the incumbent until 31 October 2015, filed an extreme-urgency suspension on 28 September 2016. Two grounds. First: the OCMW had not verified TCO's implicit honour declaration before awarding — no criminal record extract had been requested. The OCMW openly admitted the omission but pointed out that after the suspension was filed, TCO had spontaneously produced a clean criminal record dated 25 August 2016. Second ground: VAT. The specifications stipulated that 'the offer amount' had to be assessed VAT included, but the evaluation report worked with prices excluding VAT. Worse: a back-calculation of TCO's offer revealed an effective VAT rate of 10.59% on the nursing-home services — a rate that does not exist in Royal Decree no. 20. The other bidders had used uniform rates of either 6% (Sodexo, ISS, API) or 12% (Compass). ISS argued that this was a substantive irregularity and that, with a uniform 12% rate applied to TCO's offer, the final ranking would tip in its favour. It produced a detailed comparative table. The Council rejected both grounds. On the criminal record: even if the missing verification was an irregularity, it could not have harmed ISS, because the post-hoc extract showed that TCO did meet the access conditions. No standing, ground inadmissible. On VAT: the Council did the maths. The 10.59% rate was not 'impossible' — it was the weighted average of 6% (on most food items) and 21% (on monthly personnel and overhead costs). Different bidders may legitimately apply different VAT schemes when their cost structures differ. And even if all prices were recalculated VAT included as ISS proposed: for service 1 (nursing home) ISS would score 100 points instead of 99.64, and TCO 96.71 instead of 100; for service 2 (crèche) no change because both used 6%. Final scores: ISS 265.22 (instead of 264.86), TCO 265.34 (instead of 268.63). TCO still wins. The gap narrows, the ranking does not flip. Suspension refused. ISS ordered to pay 700 euro procedural indemnity plus 200 euro other costs. The Council also clarified an admissibility point: the fact that the contract with TCO had already been concluded did not bar suspension of the award decision. Article 15 of the law of 17 June 2013 allows suspension regardless of contract conclusion — otherwise the remedy would be meaningless for procurements without a mandatory standstill.
Why does this matter?
This ruling is a textbook illustration of the standing requirement in public procurement. A contracting authority can commit two recognisable procedural errors — a forgotten verification of the implicit honour declaration and a sloppy VAT treatment — and still walk away, simply because the applicant cannot show it should itself have won absent those errors. The Council does the maths and tests the impact on the ranking. For losing bidders this means: a procedural attack on the award is not enough — you must produce the numbers showing the error affects YOUR position. For contracting authorities it is a dangerous reassurance: yes, this OCMW won, but only because it could prove TCO had no conviction and because the VAT error was too small to flip the ranking. With a tighter ranking, a convicted winner or larger price gaps the same sloppiness would have led to suspension.
The lesson
If you challenge an award: always produce the figures that show the error would tip YOUR ranking. 'My margin would have been smaller' is not standing. 'I would have come first' is. Work it out in a comparative table — points per criterion, with and without the contested error, for you and for the winner. For contracting authorities: do not skip the verification of the implicit honour declaration before awarding. The fact that a missed verification was 'rescued' here by a spontaneously filed extract after the appeal is the exception, not the rule. And if your VAT evaluation deviates from what the specifications prescribe, you have a latent irregularity in your file — one that in a tighter case will cause suspension.
Ask yourself
Did you formally verify the implicit honour declaration of the prospective awardee before awarding — criminal record, social security, tax position? If not, and the prospective awardee is not the incumbent: request the certificates before the award decision, not after. And check your evaluation report: does it treat prices as the specifications require (here, VAT included)? If practice deviates from the specs, either amend the specs or supplement the report with a properly calculated overview — don't bet that a losing bidder won't notice.
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 →