A bank statement that the bidder 'has sufficient means' is not a selection criterion — without a threshold, the entire award falls
The Council of State suspends the award to SA Billy of the 'Smart mobility BW' bike-sharing service because the financial-capacity selection criterion is limited to a bank statement without a fixed threshold and there is no second financial criterion — a double breach of article 65 of the Royal Decree on Procurement.
What happened?
The Walloon Brabant intercommunal in BW launched for the third time a procedure for 'Smart mobility BW' — a service offering electric bike sharing in 27 municipalities. After two failed attempts, this third procedure (negotiated procedure with publication, with a thoroughly reworked specification) led on 1 February 2022 to an award to SA Billy for €3,987,070 excl. VAT. The specification used as sole criterion for economic and financial capacity a 'bank statement' from a 'top-tier financial institution' attesting that the bidder had the 'necessary and sufficient means' to pre-finance the firm tranche — the price of post 1 (IT), the purchase and adaptation of 650 bikes and maintenance equipment. The bidder Ezee Europe/Unimobility — selected but not awarded — attacked the selection criterion itself in its third ground: too vague, no threshold ('level of requirement'), and contrary to article 65 of the Royal Decree on Procurement no second financial criterion was provided. In BW defended that the threshold is implicitly fixed by the amount derived from the bidder's inventory, that the template was fixed in annex, and that a turnover requirement would have disadvantaged Unimobility (incorporated 2019). The Council follows the petitioners. Article 65 §§3-4 of the Royal Decree requires for every economic, financial or technical selection criterion an appropriate level of requirement, except where the criterion does not lend itself — in which case it must be combined with a second criterion of the same type that does. The Report to the King names the bank statement explicitly as an example that must be combined with e.g. minimum turnover or minimum equity. Even accepting that the amount to finance can be derived from the offer prices, the specification documents lack a single transparent evaluation method applicable by every solicited financial institution. Without that, there is no level of requirement respecting equality and transparency. And since no second financial criterion was provided, the specification doubly breaches article 65 §4. The lack-of-interest exception was rejected: in a different selection configuration, Billy might not have qualified — that suffices for interest. Suspension granted, immediate execution ordered, costs reserved.
Why does this matter?
For contracting authorities: this is one of those grounds many specifications fail on. The bank statement is a tempting financial selection criterion — short, one document, no complex threshold — and is therefore often used alone. But it does not survive judicial review: article 65 §4 of the Royal Decree explicitly states that if you use a criterion that does not lend itself to threshold-fixing, you must combine it with a second criterion of the same type that does. A minimum turnover, an equity ratio, a solvency ratio. For bidders: actively check this ground in every specification where you lose. A specification that requires only a 'bank statement on sufficient means' without a second financial criterion and without a transparent measurement method is vulnerable to suspension. This ground cuts deep — it affects the entire procedure, not just the award assessment.
The lesson
If you draft a specification and limit the financial-capacity selection criterion to a bank statement, always add a second criterion — typically a minimum turnover over the last three financial years or a minimum equity, with a transparent and equally-measured threshold. As a bidder, if you read a specification with only 'bank statement' without a second financial criterion or transparent threshold: it is a strong ground to keep available for a possible suspension. Even if you were selected, keep it: the Council ruled explicitly that selection does not extinguish your interest — a different selection configuration could have excluded your competitor.
Ask yourself
Open the selection chapter of your specification (or the one you bid on) and find financial capacity. Does it only say 'bank statement that the bidder has sufficient means'? No minimum turnover? No fixed method for quantifying capacity applicable by every bank? Three yeses: the specification is vulnerable to suspension on article 65 §3-4 of the Royal Decree.
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 →