'Proof of professional risks insurance' without amount or ceiling is no selection criterion — the Council suspends the award to Misanet and Atalian
The Belgian State had set 'proof of a professional risks insurance' as a financial selection criterion for the cleaning contract for the Immigration Service's closed centres and FITT housings, without any requirement on insured amount, ceiling or excess — the Council of State suspends the award because article 65 of the 2017 Award Royal Decree requires an appropriate level of requirement.
What happened?
The Belgian State, represented by State Secretary Theo Francken (Asylum and Migration), launched in April 2018 an open procedure for the cleaning of the closed centres and FITT housings managed by the Immigration Service. Specifications no. 2018/DVZOE/CLEANING/OP. The contract was divided in ten lots, one per centre/FITT house. Notice published on 3 April 2018 in the Belgian official journal and on 5 April 2018 in the OJEU. Submission deadline: 14 May 2018. For lots 1-5 five bidders submitted (A.I.R.A. Cleaning Services, Atalian, Group Cleaning Services, Laurenty, Misanet); for lots 6-10 three bidders (A.I.R.A., Laurenty, Misanet). The specifications used as financial selection criterion (point 12.1.2) inter alia 'proof of an insurance covering professional risks': the bidder had to take out insurance for civil liability for occupational accidents and civil liability towards third parties during execution, covering damage under articles 1382-1386 of the Civil Code (bodily, material, indirect purely immaterial) and article 544 (nuisance). No insured amount, no ceiling, no excess, no threshold was required. On 12 September 2018 the contracting authority took two award decisions: for lots 1-5, lot 4 to Atalian and lots 1, 2, 3, 5 to Misanet — A.I.R.A. got nothing; for lots 6-10, A.I.R.A. won lots 6, 8, 9 and 10, lot 7 to Misanet. On 27 September 2018 A.I.R.A. filed an extreme-urgency action with the Council of State, only against the first decision (lots 1-5). Second ground: the professional insurance selection criterion was not paired with a level of requirement — breach of articles 5, 36, 66 and 71 of the 17 June 2016 Act and articles 65 and 67 of the 2017 Royal Decree. The Belgian State raised three inadmissibility exceptions: (a) A.I.R.A. was selected, no interest; (b) the same criterion applied to lots 6-10 which A.I.R.A. won — selective complaining; (c) the criticism targeted the specifications, A.I.R.A. should have challenged them within 60 days. The VIth Chamber (Imre Kovalovszky, chamber president) rejects all three. A potential bidder can still raise an irregularity in the specifications against later decisions in the procurement procedure (the specifications decision is not 'purely preparatory' towards them). Breach of selection rules exposes the applicant to comparison with wrongly-selected competitors — direct interest. The fact that the applicant won some lots is irrelevant. On the merits: article 65 paragraph 2 of the 2017 Royal Decree obliges the contracting authority to pair every economic, financial or technical selection criterion with an 'appropriate level of requirement', unless that criterion manifestly does not lend itself to such fixation, in which case it must be paired with a second criterion that does. Article 67 §4 — saying the authority 'may require an appropriate level' for the professional insurance — must be read in light of article 65: not as an extra exception to the article 65 §2 obligation, but as clarifying that the article 65 §§2-3 exception does not apply to professional insurance — which does lend itself to a level of requirement. The Report to the King explicitly confirms continuity with case-law under article 58 §1 first paragraph 2° of the 15 July 2011 Royal Decree (Council of State 233,263 of 16 December 2015 and 232,049 of 14 August 2015): 'the mere obligation to prove that the bidder is covered by such insurance gives no information on the extent of the risk covered, nor on the part of the risk assumed by the insured under the excess'. Here the specifications correctly list the risks to be covered (Civil Code arts. 1382-1386 and 544), but say nothing on insured amounts, ceilings or excesses. The objective of the criterion — proving the bidder has the economic and financial capacity to perform — is not served without those parameters. The second ground is serious. The extreme-urgency suspension is granted: the award decision of 12 September 2018 for lots 1, 2, 3, 4 and 5 is suspended. Costs reserved.
Why does this matter?
Many spec drafters include 'proof of professional insurance' as a financial selection criterion without further quantitative detail. This case confirms under the current 2017 Award Royal Decree what was already settled under the 2011 Royal Decree: such a criterion fails. Insurance comes in all sizes — €100,000 or €50 million, with or without excess, with or without exclusions — and without a quantitative threshold says little about the bidder's actual financial capacity. For contracting authorities: always set a minimum cover, possibly a ceiling, a maximum excess, and describe the risks to cover. For bidders: an award based on an unquantified insurance criterion is a serious ground, even if you were selected yourself. Interest in the ground exists once the defective selection exposes you to competition from wrongly-selected rivals. And you do not need to challenge the specifications within 60 days to raise that critique against the later award decision. For those who bid on multiple lots and win some, lose others: you can selectively appeal the lost lots — selectivity is not held against you.
The lesson
A selection criterion 'proof of professional insurance' must always be paired with a level of requirement (insured amount, ceiling, maximum excess) — or, if the contracting authority deliberately omits this, with a second financial criterion that does lend itself to quantification. For bidders: even when selected, you have an interest in challenging the regularity of a selection criterion, because the irregularity exposes you to wrongly-selected competitors. And the criticism of a specification clause can still be raised against the later award decision.
Ask yourself
Look at the selection criteria in a specification or an award decision. For every economic, financial or technical criterion: (1) Is there a quantitative level of requirement (amount, ceiling, threshold)? (2) If not: does the criterion manifestly not lend itself to such fixation? For 'professional insurance' the answer is 'no' — that criterion does lend itself to quantification under article 67 §4 of the 2017 Royal Decree. (3) Is there, in the absence of quantification, a second paired criterion with a level? If any of the three remains negative, you have a serious ground.
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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 →