Welfare-benefit clients count: the Council of State suspends the non-selection of Gatam for the Antwerp port cleaning contract
The Port of Antwerp-Bruges refused to select the non-profit Gatam for a framework agreement for cleaning services reserved for the social economy because it allegedly failed to show that at least thirty percent of its workers are disabled or disadvantaged, but the Council of State ruled under extreme urgency that an organisation working exclusively with welfare-benefit clients made available by the public welfare centre (OCMW) under article 60, § 7 of the OCMW Act ipso facto meets that threshold — and suspended the non-selection.
What happened?
In August 2022 the Port of Antwerp-Bruges tendered a services contract for a ‘framework agreement for cleaning maintenance on the right bank (social economy)’ (B11028), through a negotiated procedure with prior call for competition. Under article 15 of the 2016 Public Procurement Act, access was reserved for sheltered workshops and operators whose aim is the social and professional integration of disabled or disadvantaged persons, on condition that at least thirty percent of the workforce belongs to that target group. On 19 September 2022 five requests to participate were opened, including that of Gatam. Gatam is a transition organisation: it does not employ the target group itself, but lets welfare-benefit clients of the Antwerp OCMW — for its ‘Haventornado’s’ project — complete a work-experience trajectory under article 60, § 7 of the OCMW Act, aimed at moving on to the regular labour market. After a request for clarification of 12 October 2022 and Gatam’s reply of 18 October 2022, the port, on the basis of the selection report of 28 October 2022, selected four candidates and rejected Gatam: it allegedly ‘could not demonstrate that at least thirty percent of the workers’ belong to the target group. Notification followed on 17 November 2022; the executive committee confirmed the decision on 24 November 2022. The Council of State saw it differently. Neither article 15 nor the selection guide requires the candidate to be the employer of the target-group workers itself; being made available by another employer suffices. And an organisation working exclusively with welfare-benefit clients made available by the OCMW under article 60, § 7 thereby ipso facto satisfies the thirty-percent rule — a list of the persons concerned is not required. Gatam had moreover submitted its secondment agreement with the OCMW of 4 November 2021 (34 full-time equivalents) and announced its renewal; on 9 November 2022 a new three-year agreement was indeed concluded. If the port doubted that continuity, it should, as a diligent contracting authority, have asked about it specifically. The selection report therefore lacked the required legal and factual basis; the first plea was serious and the Council suspended the execution of the non-selection under extreme urgency.
Why does this matter?
Reserved contracts for the social economy are a niche with hardly any case law, and this judgment answers a central question about them: who counts towards the thirty-percent threshold of article 15 of the 2016 Public Procurement Act? Chamber president Lemmens reads the provision in light of its purpose — a social correction to the principle of competition — and concludes that being the employer oneself is not a requirement. Transition organisations working with seconded OCMW clients, the typical article 60 model, thus gain full access to this type of contract. The evidentiary rule matters too: welfare-benefit clients deployed via article 60, § 7 qualify by definition as disadvantaged, so the authority may not demand a list of names or individual certificates from an organisation working exclusively with that group. The judgment also confirms two classics. First: a selection report that asserts without explanation that a condition is not met lacks a proper basis; a defence submitted later in the note cannot repair that reasoning. Second: a contracting authority that doubts a specific point — here the renewal of the secondment agreement — must ask targeted questions about it before excluding a candidate. Asking a vague question and then excluding because the answer fails to convince is not enough.
The lesson
For social-economy organisations wishing to take part in reserved contracts: you need not have the target-group workers on your own payroll. Do document carefully how you work with the target group — articles of association, cooperation agreement with the OCMW, project description — and attach those documents to your request to participate. If you work exclusively with article 60 clients, the thirty-percent condition is thereby fulfilled; the authority may not demand a per-person list. For contracting authorities: read article 15 in light of its purpose and do not exclude a candidate on a formalistic reading of ‘workforce’. State the reasons for non-selection in the selection report itself, concretely and verifiably. And if you doubt a specific point, such as the term of an agreement, ask that specific question — a general request for clarification followed by an exclusion will not survive scrutiny by the Council of State.
Ask yourself
Do you know that a candidate for a reserved contract need not employ the target-group workers itself, and that secondment by the OCMW suffices? Do you realise that welfare-benefit clients deployed via article 60, § 7 of the OCMW Act qualify by definition as disadvantaged, so that the thirty-percent threshold is then automatically met? Does your selection report state concretely why a candidate does not qualify, or does it merely assert a conclusion? And if you doubt the continuity of a cooperation agreement: do you ask about it specifically before excluding?
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 →