An €800,000 framework agreement can be awarded to a class 2 contractor — as long as each call-off stays below the threshold
The Council of State rejects TECNOFLEX's urgent suspension request against the award to HOME PERSPECTIVE of a framework agreement for window replacement at the Port of Brussels (€324,387 ex. VAT, total €800,000 over 4 years): for a framework agreement, the certification class is assessed per call-off, not on the overall budget — even when the contracting authority decides to free up €400,000 for the first year.
What happened?
On 9 March 2020, the Port of Brussels publishes a contract notice for a framework agreement for window replacement in port buildings (CSC 1253). It is a works contract in the special sectors (port activities), to be awarded via negotiated procedure with prior call for competition, with a duration of 12 months renewable three times (total 4 years), based on price, to a contractor with class 2 certification (up to €275,000), category D20. The specifications state that ‘the dimensions and number of windows to be replaced are not yet fixed and that the attached bill of quantities serves only as a reference for comparing bids’. Works will be ‘ordered as needs arise via service orders’. Three bids are received. HOME PERSPECTIVE offers €324,387 ex. VAT (best). TECNOFLEX is second at €402,759.55 ex. VAT — a gap of €78,372.55. In its 24 April 2020 report the Port asks its board to approve the award and to raise the 2020 budget from €200,000 to €400,000, to enable replacement of the 56 windows at the head office (estimated €177,204.60) and 35 windows at the TIR centre (estimated €86,490) within the year. The total framework budget over 4 years remains €800,000. The board approves on the same day. TECNOFLEX appeals to the Council of State on extreme urgency, raising two main grievances. First: HOME PERSPECTIVE only holds class 2 certification (max. €275,000), while the Port effectively awards a contract whose first tranche alone is €400,000. According to TECNOFLEX, this is ‘saucissonnage’ — splitting an above-threshold contract: there is in reality one single order of €400,000 for 2020, not several smaller call-offs. Second: the specifications give no indication of duration or overall budget — TECNOFLEX could have offered up to 8% discount with that information. The Council of State follows neither. For a framework agreement, the principle is that compliance with certification rules is assessed per call-off, at the moment the call-off is concluded. The contracting authority must, however, verify when awarding the framework itself that the chosen partner will ‘reasonably’ hold the required certification for foreseeable call-offs. Here the Port had checked: the estimate of the three separate sites for 2020 (€177,204.60 + €86,490 + €8,430 reserve) each stays below the class-2 threshold of €275,000, and the total stays well below the cumulative ceiling of €2,200,000 for simultaneously executed contracts. The €400,000 budget decision is, according to the Council, not a ‘call-off’ within the meaning of a public-contract award but a purely internal budgetary measure. The fact that the window specifications at head office differ from those at the TIR centre justifies splitting them into two separate call-offs, not bundling them. On transparency: the duration of the framework (12 months ×3) was simply in the contract notice. For special sectors with Belgian publication (as here), no rule requires the overall estimated budget to be communicated to bidders in advance. Moreover, an 8% discount (= ~€32,220) would not have bridged the €78,372 gap with HOME PERSPECTIVE. Suspension dismissed, €700 procedural indemnity for the Port.
Why does this matter?
Many construction contractors see an €800,000 framework agreement and automatically conclude: only class 4 (€500,000+) qualifies. This judgment shows that calculation is wrong. What matters is what is ordered per individual call-off — not the overall ceiling. That opens two fronts. For winning contractors with a lower class: you can bid on apparently large framework agreements, provided the contracting authority can show that foreseeable call-offs each stay below your threshold. For the runner-up who feels wronged: proving artificial splitting (‘saucissonnage’) is hard when the works are technically different or are ordered through separate service orders. The other common complaint — no overall budget disclosed — must be substantiated with a calculation: you must show what other bid you would have submitted and that it would have changed the outcome. A hypothetical 8% discount that does not bridge the gap doesn't count.
The lesson
If you want to challenge a framework agreement award based on ‘insufficient certification class’, do the bill-of-quantities exercise first. Split the truly expected call-offs (building by building, phase by phase, year by year) and check whether each one exceeds the winning contractor's class threshold. If you can't do that, the plea fails — even if the global budget seems high. And if you want to argue that the absence of budget indication harmed you, calculate exactly: how much discount would you have given, and would it have closed the gap with the winner? A vague ‘I would have bid lower’ is not enough.
Ask yourself
You bid for a framework agreement and your certification class is below the global budget. Ask three questions: (1) does the specification or its annex contain an estimate per call-off or per year, and does each tranche stay below my threshold? (2) is the cumulative ceiling for simultaneously executed contracts (class 2 = €2,200,000, class 3 = €3,300,000, etc.) compatible with the announced execution schedule? (3) are the works technically homogeneous enough that splitting could appear artificial? Three ‘yes’ answers → defendable position. One ‘no’ → risk of suspension or annulment at a later call-off.
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 →