One disabled worker out of two is exactly half — and half is not a majority
Groenservice Marissen was the cheapest bidder on a contract reserved for sheltered workshops in Schoten, but was excluded because it could not show that a majority of its workers — or even of the two workers it would actually deploy on site — were disabled; the Council of State dismisses the appeal.
What happened?
In late 2016 the municipality of Schoten launched a four-year contract for the maintenance of its parks (lot 1) and ponds (lot 2). Estimated value: €466,115.71 excl. VAT — above the European threshold. The contract was 'reserved' under article 22 §1 of the Public Procurement Act 2006: only sheltered workshops or businesses with sheltered employment programmes could bid, provided 'the majority of the workers concerned' were persons with a disability preventing normal occupational activity. Two firms applied: vzw Aralea (a classic sheltered workshop) and NV Groenservice Marissen, a social insertion company (SINE). On price Groenservice was clearly cheaper for lot 1 (€316,800 vs €365,280); Aralea was cheaper for lot 2 (€22,360 vs €28,050). On 24 January 2017 Groenservice sent a SINE certificate. On 1 February the municipality emailed back: SINE recognition can already be granted with one employee, so it doesn't prove the 50% threshold — please send a list of SINE-status employees. On 8 February Groenservice answered with disarming honesty: roughly 50% of its staff had a history of long-term unemployment, age 50+ or disability; for the Schoten work a team of two would be deployed — one team leader and one disabled worker (VOP file). Groenservice further argued that 'workers concerned' in article 22 §1 logically refers to the workers actually on site, not the entire payroll. On 8 February 2017 the award report was drafted: do not select Groenservice, Aralea gets maximum score on both lots. On 14 February the contract was awarded to Aralea. Groenservice went to the Council of State with five sub-grievances: an inadmissible reading of article 22 (discrimination between SINE and sheltered workshop), breach of legitimate expectations (earlier contracts had been awarded to it), motivation defect, breach of the competition obligation (effectively only one valid bidder), and a second branch about the award to Aralea. The XIIth chamber, presided by Dierk Verbiest, sweeps everything aside. The core point: the decisive criterion under article 22 §1 is not the recognition status but the factual 50% threshold. The municipality did not exclude Groenservice because it is a SINE company, but because it failed to show a majority of disabled workers. Then a striking move: even in the most favourable reading for Groenservice — 'workers concerned' = only those carrying out the contract — the company falls short. One out of two is exactly half, not 'a majority'. The proposed preliminary question to the Court of Justice on the meaning of 'workers concerned' is therefore irrelevant: under no reading does Groenservice meet the threshold. Legitimate expectations? Not breached — nothing in the email exchange entitled Groenservice to assume the municipality meant only the on-site team. Earlier awards below the European threshold are not comparable (article 22 §2 has no 50% requirement). Competition? No breach — two bidders received, contract properly published; the Flemish Facility Agency's manual suggesting that reserved contracts require multiple candidates has no normative value. Appeal dismissed, damages refused, Groenservice pays €700 in procedural costs.
Why does this matter?
Reserved contracts are often presented as an opportunity for social enterprises, but this judgment shows how narrow the window is above the European threshold. Two things are crucial for SINE companies and social insertion enterprises bidding on such a contract: one, your SINE certificate or recognition is not an entry ticket — what counts is the actual composition of your staff; two, 'majority' is read strictly as 'more than half', not 'half or more'. For contracting authorities considering reserving a contract: make sure the specifications make clear that under article 22 §1 (above the European threshold) a real majority of disabled workers is required, and that SINE recognition alone is not enough. For both bidders and authorities: the Council here adopts a reading that works for every interpretation of 'workers concerned' — the debate about on-site team versus full payroll is cleverly bypassed by finding that neither hypothesis meets the threshold.
The lesson
If you are a social enterprise bidding on a reserved contract above the European threshold, do the math before you submit: do I really have more than half disabled workers, either across my whole payroll or in the team I will actually deploy? A SINE certificate or recognition as a social insertion company is not currency — it merely proves you have at least one qualifying worker. As a contracting authority: for reserved contracts above the threshold, always request a written list of names and a verifiable ratio. If a bidder doesn't meet the threshold — not even on the on-site team — exclusion is defensible.
Ask yourself
You are bidding on a reserved contract under article 22 §1 (above the European threshold). Your firm has ten workers, four with a disability preventing normal activity. Your on-site team would be three people, two of them disabled. What number is in your offer: 4/10 (40%), 2/3 (67%), or both with backup? If you don't have both in view and cannot show that the disabled workers in the on-site team will actually be on site, you risk exclusion.
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 →