‘This is not a public contract’, wrote the Brussels welfare centre in its notice — the Council of State ruled otherwise, but Multipharma still came away empty-handed
The public welfare centre (OCMW) of Brussels awarded the medicine supply for five of its care homes to M.D.D. Pharma through a procedure it had explicitly placed outside public procurement law; the Council of State held, prima facie, that these were indeed public service contracts, but rejected Multipharma’s extreme-urgency application because none of its four pleas — on the rebate scheme, the liquid dose-dispensing, the missing weighting of the award criteria and the reasoning — proved serious.
What happened?
On 17 March 2022 the OCMW of Brussels published five simplified notices in the Public Procurement Bulletin: for each institution it sought one pharmacist to supply medicines to the residents of Huis Vesalius, Residentie Sint-Geertruide, Ter Ursulinen, Huis Heizel and Residentie De Wilde Rozen, under the ‘pharmaceutical mandates’ the residents had granted to the directorates. Strikingly, the notice stated expressly that it was ‘not intended to organise a public contract’. Three pharmacies submitted proposals — P., M.D.D. Pharma and Multipharma. The evaluation reports of 16 November 2022 ranked the proposals on five criteria in descending order of importance: method of performance, additional services, delivery times, distance to the local pharmacy and rebates. M.D.D. Pharma ranked first on the three most important criteria — its daily individual dose-dispensing was ‘more complete’ and ready-to-use, its additional services (free swallowing gel, oxygen concentrators, aerosol and diabetes measuring devices) and online platform stronger, its delivery times more flexible — and only on rebates did it have to let Multipharma go first, by 2 %. On 23 November 2022 the welfare council awarded the five agreements to M.D.D. Pharma. Multipharma lodged five extreme-urgency applications on 16 December 2022, which the Council of State joined. The Council first dismissed the OCMW’s objection to its jurisdiction: the residents’ mandates did not authorise the directorates to appoint one pharmacist for all residents together — the OCMW itself had decided that, as an administrative authority. And because the chosen pharmacist also provides services to the institutions themselves (the dose-dispensing that simplifies medicine management, advice on the health-insurance nomenclature and price management), these were, prima facie, public service contracts under the law of 17 June 2016. Yet that did not save Multipharma: its first plea — that the 25 % rebate M.D.D. Pharma partly grants through a credit note to the institution is a prohibited premium — failed because commercial practices on prices, margins and rebates fall outside the prohibition of article 10 of the Medicines Act, and the Brussels accreditation standards even expressly regulate collective rebates. The second plea — that liquids such as drops and syrup do not belong in individual dose-dispensing — ran up against the finding that the federal medicines agency’s guideline is merely a recommendation without normative force, while M.D.D. Pharma moreover delivers the liquids in sealed individual portions. The third plea, on the absence of a relative weighting per award criterion, remained a ‘mere assertion’ that weighting was possible, without demonstrated harm. And the fourth plea failed because the evaluation reports adequately set out the strengths and weaknesses of each proposal, even without numerical scores. The Council rejected the applications and ordered Multipharma to pay five times the roll fee of 200 euros and five times the contribution of 24 euros; M.D.D. Pharma bears five times the intervention fee of 150 euros.
Why does this matter?
The heart of this judgment is that the label an authority sticks on its procedure determines nothing. The OCMW wrote literally in its notice that it was not organising a public contract, but the Council of State looks at the subject-matter: whoever procures services for consideration that help fulfil its own legal obligations — here the pharmaceutical care the accreditation standards impose on care homes — is awarding a public contract, with all the rules that entails. That is an important signal for the care sector and other fields where mandate and intermediary constructions create the impression that procurement law does not apply. The judgment also confirms the Labonorm line: a bidder who only raises defects in the notice after the award does not thereby lose its interest — it is not expected to legally vet every provision before submitting its tender and rush to court at once. But sitting still is not free: the Council weighs it in assessing the seriousness of the criticism, and whoever offers only ‘mere assertions’ without concrete harm will not succeed. Finally, the judgment stands out for the pharmacy market itself: rebates to care homes — even partly through a credit note to the institution — are not prohibited medicines promotion as long as they remain within normal commercial practices on prices, margins and rebates.
The lesson
For contracting authorities: do not lightly call a contract ‘not a public contract’. The qualification follows from the subject-matter of the agreement, not from your notice — and whoever procures services for consideration falls under the law of 17 June 2016, with its obligations of reasoning and weighting. That the OCMW survived here was down to the weakness of the pleas, not the chosen construction. For bidders: you may still invoke defects in the notice after the award, but do not count on that being enough. Ask your questions before you submit — your silence weighs against you — and substantiate your criticism concretely: show what harm the absence of a weighting or a score actually caused you. A principled objection without figures or facts is, for the Council, a ‘mere assertion’.
Ask yourself
As an authority, do you qualify an agreement as ‘not a public contract’ — and have you then checked whether its subject-matter (services for consideration that fulfil your own obligations) actually supports that qualification? Does your notice state the relative weighting of the award criteria, or at least expressly their descending order of importance? Can an unsuccessful bidder understand from your evaluation report why it lost, even without numerical scores? And as a bidder: do you raise your questions about the procedure before submitting your tender, and can you concretely demonstrate in an appeal what harm a defect in the contract documents caused you?
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 →