bpost's subsidiary wins the mailing contract of the National Office for Annual Leave — and that is not a conflict of interest, says the Council of State
Symeta Hybrid, the incumbent provider ranked only third, sought the suspension under extreme urgency of the award of the National Office for Annual Leave's printing and franking contract to Speos Belgium, arguing that a bpost subsidiary cannot fairly compete for a contract whose price consists largely of bpost tariffs; the Council of State dismissed the application because the criticism remained speculative, bpost prima facie does not constitute a ‘conflict of interest’ within the meaning of article 6, and the price gap was simply explained by Symeta being the only bidder not to use the advantageous ‘BPI tariffs’.
What happened?
In July 2022 the National Office for Annual Leave (RJV) launched an open procedure for printing, enveloping, preparing for dispatch and handing over its correspondence to bpost, plus franking, for 2023-2025. Price carried 80 points out of 100, quality 20. The specifications required eight fixed unit prices, including ‘Fin’: the unit price for franking standardised international mail within Europe up to 50 grams. Four bidders submitted offers: Acto Print en Mailservices, Postalia Belgium, Speos Belgium and Symeta Hybrid, the incumbent. After clarification rounds in August and September 2022, Postalia's offer was found substantially irregular. The three remaining offers received an identical quality score of 16 out of 20; the difference lay entirely in price. Speos Belgium, with an evaluated price of 892,629.52 euros, obtained the maximum 80 points and a total of 96; Acto Print (923,471.42 euros) scored 93.33 and Symeta Hybrid (1,000,866.99 euros) 87.35. On 5 October 2022 the RJV awarded the contract to Speos Belgium. Symeta filed an application under extreme urgency on 21 October 2022 with two pleas. First, it considered it ‘fundamentally problematic’ that the winner is a subsidiary of bpost, the operator to whom the mail must be handed over and who sets the franking tariffs every bidder must pass on: this would amount to a prohibited price arrangement (article 5) and an undisclosed conflict of interest (article 6 of the 2016 Public Procurement Act), and the competitors' lower prices should at least have been examined as apparently abnormal (article 36 of the Royal Decree on award procedures). Second, it argued that for item ‘Fin’ only one valid tariff existed, bpost's published rate of 2.10 euros, so that any lower price rendered the offers irregular. The Council dealt with the second plea first. Having inspected the confidential offers and the Excel price comparison, it found that all three competitors had indeed quoted significantly less than 2.10 euros, based on the so-called ‘BPI tariffs’ (belgian post international) — the contractual volume tariffs bpost offers through its international division Landmark Global (‘Volumail’). Nothing in the specifications prohibited quoting an average of those tariffs as a fixed unit price; that is moreover a common pricing method. The Council found it odd that Symeta, which as incumbent already applies a considerably lower rate and acknowledged the existence of the BPI tariffs in its own offer, had asked no question about it, not even on the available online forum. The argument that the BPI tariffs were unusable because mail had to be handed over ‘to bpost’ was turned around by the Council: that is precisely when those tariffs apply. The first plea failed on the same point. The Council did recognise the third-ranked bidder's interest in a plea affecting the lawfulness of the entire procedure, and nobody denied the parent-subsidiary link between bpost and Speos. But the file showed that bpost applies the same basic tariffs and operational discounts to all bidders for Belgian mail, and that the average unit prices of the three other bidders for international mail were ‘not far apart’. The price difference was thus explained by the extent to which bidders passed on discounts and by Symeta's failure to use the BPI tariffs — not by a secret advantage for Speos. Moreover, according to the Council, the prohibited price arrangements of article 5, § 1, second paragraph, concern arrangements between bidders. Whoever alleges a price arrangement in an extreme-urgency procedure must set out ‘with sufficient clarity the elements’ supporting it; a mere ‘it cannot be excluded that’ does not suffice. The conflict-of-interest argument was equally unconvincing: bpost is involved only as a third party in the performance of the contract (the handover of mail) and prima facie has no influence on the award procedure or its outcome, so it does not fall within article 6, § 1, second paragraph. Finally, the Council held that the RJV, which had received a price justification note from each bidder and had even asked Speos for additional justification, was entitled, within its considerable margin of discretion, to conclude that no abnormal-price investigation was required. Neither plea was serious. The application was dismissed and Symeta Hybrid was ordered to pay a roll fee of 200 euros, a contribution of 24 euros and a procedural indemnity of 770 euros to the RJV; Speos Belgium bore the 150-euro roll fee for its intervention.
Why does this matter?
This judgment touches a structural feature of the Belgian postal market: in almost every public printing and mailing contract, the bulk of the price consists of franking costs set by bpost, while a bpost subsidiary (Speos) competes as a bidder. To competitors that feels unfair, and Symeta articulated that intuition clearly. The Council of State, however, shows where intuition yields to law. First, the concept of ‘conflict of interest’ in article 6 of the 2016 Act is not so broad as to cover every third party whose prices bidders must pass on: it concerns persons who can influence the award or its outcome, not a supplier merely involved in performance. Second, the prohibition of price arrangements in article 5 targets arrangements between bidders, not the vertical link between a bidder and its parent company. Third — and this is the practical core — whoever alleges a distortion of competition must substantiate it. The Council could look into the confidential documents and saw that the three other bidders had quoted similar prices; it was Symeta that stood out, because it alone had used the published counter rate of 2.10 euros instead of the volume tariffs everyone in the sector knows. The judgment thus confirms two settled lines of case law: a contracting authority enjoys considerable discretion in the general price review, and a third-ranked bidder is admitted to a plea affecting the whole procedure, but that plea must then stand firm. It also shows what a missed question in the Q&A round can cost: had Symeta asked whether the BPI tariffs could be used, it could either have bid more sharply or have had a concrete hook for its criticism of the specifications.
The lesson
For bidders: if a large part of your price consists of third-party tariffs passed on, find out before submission which tariff structures the market uses and ask your questions during the Q&A round — not afterwards before the Council of State. Whoever quotes the published standard rate while competitors work with contractual volume tariffs loses on price and subsequently loses the argument that those lower prices are ‘abnormal’. If you suspect a conflict of interest or a price arrangement, you must bring concrete elements in an extreme-urgency procedure; ‘it cannot be excluded that’ is not a serious plea for the Council. And if you are ranked third, aim your criticism at something that affects the entire procedure, otherwise you lack standing. For contracting authorities: the judgment confirms your wide margin of discretion in the price review, but the RJV also earned that margin — it required a detailed price justification note from every bidder, put additional questions to the cheapest bidder and could show from its Excel comparison that the price differences were explicable. Make sure your file contains that explanation; it is what separates ‘speculative criticism’ from a serious plea.
Ask yourself
Do you know which contractual or volume tariffs your competitors can pass on for items set by a third party, and did you ask about it in the Q&A round? Does your application contain concrete elements pointing to a conflict of interest or a price arrangement, or does it rest on suspicions drawn from the price gap alone? If you are ranked third, does your plea affect the lawfulness of the entire procedure? And as a contracting authority: can you explain, with documents from your file, why the price differences between offers are normal, and did you require and read a price justification note from the bidders?
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 →