'A sound financial basis' is not a level of requirement — not even in a negotiated procedure
The Council of State suspends the award to Köse Cleaning of the cleaning of SNCB management buildings in Brussels because the contract notice fails to specify a level of requirement for several selection criteria — an obligation that applies fully to the negotiated procedure with publication too.
What happened?
In February 2016 SNCB publishes a notice for cleaning offices and windows in its Brussels management buildings: a four-year framework agreement via negotiated procedure with publication, special sectors. Ten candidates apply, nine are selected. The notice contains selection criteria but several lack a 'level of requirement': financial — 'sound financial basis', no figure; staffing — declaration of 'available human resources', no minimum; references — 'current client references', no number or scale. Concrete elements: minimum turnover of 3 million euros/year (2013-2015) on the Belgian market, and four reference contracts of at least 450,000 euros/year. Award criteria: price (60%), action plan (30%), ecological/ethical aspects (10%). An hourly rate below the UGBN sectoral average (26.81 euros/hour) requires justification. SNCB awards on 27 October 2017 to Köse Cleaning at 1,697,903.56 euros/year. Final ranking: Köse 92.69; Jette Clean 89.11; Euroclean 81.56. Jette Clean challenges in extreme urgency. Second ground: article 63, §1 of the 2012 Royal Decree (special sectors) requires the authority to specify selection criteria and their levels of requirement — even in negotiated procedure. SNCB defends: in negotiated procedure only a 'level of requirement' is mandatory (not a minimum), and it can be read flexibly. The Council notes: 'flexible' has no meaning when there is simply no level. 'Sound financial basis' is too vague to count as a level. Same for 'available human resources' and 'current client references'. The ground is serious. Suspension granted.
Why does this matter?
Many authorities believe the negotiated procedure (with or without publication) frees them from the stricter level rules of open or restricted procedures. The text of article 63, §1 does say so: open/restricted requires a minimum level, negotiated 'only' a level of requirement. But that level is not optional — it is mandatory. And vague formulas like 'sound financial basis' or 'sufficient staffing' do not count. This ruling is useful whenever a notice contains selection criteria without numerical thresholds.
The lesson
For authorities: include at least one measurable element in every selection criterion. Not 'sound financial basis' but for example 'positive equity in the last two published annual accounts'. Not 'sufficient staff' but 'at least X full-time equivalents or a documented plan to build that capacity'. A subsequent audit is no substitute for a pre-published level. For tenderers: scan every notice for selection criteria without quantitative thresholds. If you suspect the specifications disadvantage you, raise the objection before bidding — or save it as a ground for extreme urgency after an unfavourable award.
Ask yourself
Does your contract notice contain a selection criterion using only qualitative terms ('sound', 'sufficient', 'recent', 'representative') with no numerical threshold? That criterion is vulnerable to suspension — whether open, restricted or negotiated procedure.
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 →