'Impossible to assess' is no motivation when the file contains all the data
The Council of State annuls a Brussels rejection for the second time because the selection jury refused to perform the analysis prescribed by its own call for tenders — even though the Council itself shows it could be done, on the very same file.
What happened?
Luciano Pellegrino is a craftsman who makes jewellery and artistic soaps and has been trying for years to obtain a permanent place at the Brussels Agora artisan market. The City of Brussels organised a call for candidates in July 2015 to allocate 19 subscription places and 2 daily-lottery places among artisans. The call laid down three cumulative criteria for an 'artisan product' — among them that manual contribution had to be 'the most important component' of the finished product. In November 2015 the jury rejected Pellegrino's candidature. The Council of State suspended that decision on 11 December 2015 (judgment 233.235): the city had wrongly held that manual contribution was not the most important component. The Council did the calculation itself in that judgment — at an hourly rate of EUR 40, Pellegrino's manual work clearly exceeded the price of his raw materials. The city withdrew its decision and set up a new jury to re-examine the candidature. On 2 June 2016 the second verdict came: rejection again. The reasoning sounded familiar: 'On the basis of the file it is impossible to determine whether manual contribution is the most important component. The two invoices and the table provided by Pellegrino do not allow comparison between raw-material prices and selling price.' On top of that, a jury member added a new criterion: a real jeweller saws, files, polishes and solders metal — Pellegrino merely assembles ready-made elements on a kitchen table. In this judgment of 5 September 2018 the Council of State makes short work of that motivation. First the finding: the call (article 5.2) explicitly requires the jury to take into account 'the selling price of the finished product, the price and nature of raw materials, and the time and steps of realisation' for this criterion. Then the cutting observation: 'If the Council of State was able to carry out this assessment on the basis of the file submitted by the applicant to the first jury, there is no reason why the new selection committee, having the same documents, would not be able to do so as well.' Moreover, the jury added criteria to the call that were not there — traditional metal techniques, specialised workbench — even though this is an artisan market, not a jeweller's salon. That breaches the call itself. The Council annuls the decision of 2 June 2016 and imposes provisional measures: the city must give Pellegrino a place on the market (provisional subscription or daily-lottery) until a regular new decision is taken, with reassessment within four months. The city pays EUR 840 in procedural compensation and EUR 400 in other costs.
Why does this matter?
This judgment concerns a craftsmen's market, but the legal logic applies to any selection procedure with objective criteria — including classical public procurement. Core idea: a contracting authority cannot refuse to perform the assessment its own call prescribes. 'The file does not allow analysis' is not a valid motivation when the data is in fact there. More importantly: after annulment by the Council of State, a re-assessment is no licence to make the same mistake again. The new decision must actually be motivated differently, using the criteria as set in the call — not criteria the jury invents after the fact.
The lesson
If as a bid manager you receive a second rejection after the Council of State annulled the first, read the new motivation closely. Is the contracting authority essentially making the same argument, or has it now applied the criteria in the call? In the first case, a second annulment is well within reach — and you can ask for provisional measures. If you are a contracting authority re-assessing after annulment: do the analysis the call prescribes, with the data in the file. Missing data? Request it before deciding — a 'cannot assess' motivation will not stand.
Ask yourself
If you are motivating a rejection with 'on the basis of the file we cannot assess this': ask yourself whether the call requires this assessment and whether the requested data (prices, times, quantities) is in fact in the file. If yes: do the calculation, even roughly. If no: request additional information before deciding.
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 →