The winner built the very quality framework the tender relies on — and that alone is not a reason to exclude them
The Council of State refuses, in extreme urgency, to suspend an award where the winning bidder (IPSO) had previously drawn up the quality reference framework and supporting database that the new tender re-used — because the applicant could not concretely demonstrate a competitive advantage.
What happened?
The Société wallonne des eaux (SWDE) had earlier put a cleaning contract for its buildings on the market (CSC 2965/cleaning of premises 2021-2029). The French company IPSO was not the cleaner, but in that first contract acted as the party that drew up the quality reference framework, compiled a database of sites to be inspected, and even helped draft the offer analysis report. Two years later SWDE issues a second, smaller contract (CSC 3356/Inspection of cleaning of buildings 2021-2029) — for the independent monitoring of cleaning quality. Three bidders submit offers: Alba Concept (149,400 euros excl. VAT), Atir, and — surprise — IPSO (103,164 euros excl. VAT). IPSO is declared economically most advantageous with 30.57 points more than Alba Concept, and the contract is awarded to IPSO on 10 November 2021. Alba Concept files an extreme urgency action with three pleas. The core sits in the first plea: Article 52 of the 17 June 2016 Act requires the contracting authority to take appropriate measures whenever a bidder has previously participated in the preparation of the procedure, to avoid distortion of competition — and ultimately to exclude under Article 69, 6°. Alba lists three advantages IPSO supposedly had: privileged information, more preparation time, and a cost saving of an estimated 15,000 euros because the inspection-site database already existed. A second plea: SWDE allegedly performed no price check on IPSO's presumably abnormally low price. The Council of State, presided by David De Roy and against the contrary opinion of auditor Christian Amelynck, dismisses all pleas. On the first plea: even assuming IPSO 'in some way participated in the preparation' of the procedure (which SWDE disputes), the applicant must concretely show a risk of distortion of competition. The Council dissects the three claimed advantages one by one: (1) Alba does not specify which 'privileged information' IPSO had, nor why the 'authorship' of the quality framework as such would risk distortion; (2) Alba does not claim it had insufficient time itself, nor what information it was denied; (3) the alleged cost saving of around 15,000 euros 'cannot be verified in extreme urgency — the Council cannot assess in this procedural context the plausibility of the estimates, nor their impact on competition'. On the second plea: Article 44 of the Royal Decree of 18 June 2017 (the extended price examination phase with a justification request) only kicks in when a suspicion of abnormality has arisen during the initial price verification of Article 43. Alba Concept does not show that such a suspicion existed, nor does it complain of a manifest assessment error in that initial verification phase. The third plea, which depends on the first two, also fails. Suspension refused; cost decision deferred.
Why does this matter?
Bid managers almost reflexively react when they see that a winning competitor has previously worked for the same contracting authority — especially when that work relates to the tender or the evaluation criteria. This judgment shows that suspicion alone is not enough. Article 52 requires two things: participation in the preparation and a concrete, demonstrable competitive advantage. The burden of proof on the second element lies heavily on whoever asks for exclusion — and even more heavily in extreme urgency, where the Council cannot conduct a complex cost analysis. For contracting authorities there is a mirror message: Article 52 obliges you to take appropriate measures as soon as a previous participant submits a bid, even if you doubt there is any real advantage. A short paragraph in the award report explaining why you consider competition was not distorted protects you against pleas like this. Second lesson: the difference between Article 43 (ordinary price verification) and Article 44 (extended price examination) is a threshold — and anyone wanting suspension on abnormal-price grounds must not forget to articulate that distinction.
The lesson
If you suspect a competitor obtained a competitive advantage from earlier work for the same contracting authority, do two things before going to court: (1) list the concrete advantage — what information exactly, how much time, how many euros — and (2) build the argument so it can be read without a deep cost analysis, because the Council has no time for that in extreme urgency. The mere fact that the winner previously prepared a reference framework, database or methodology that is now re-used is, in itself, no ground for suspension.
Ask yourself
You're in an extreme-urgency procedure and your competitive-advantage plea relies on an estimated 'cost saving of X euros' for the winner. Have you backed it up with concrete, readable evidence the Council can assess in two weeks — or are you leaning on a complex rough estimate that can only be properly clarified on the merits? If the latter: your plea will not be accepted as 'serious'.
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 →