A specification that puts 'non-recoverable judicial costs' on the contractor effectively excludes judicial officers
The Council of State annuls a debt-collection contract because the specifications placed the burden of judicial costs that could not be recovered from the debtor on the contractor — a condition that judicial officers, bound by the 1976 royal decree on their tariff, cannot legally bear.
What happened?
On 4 February 2019, the Charleroi public hospital intercommunale ISPPC awarded a debt-collection contract to Venturis NV. The specifications (article III.1.2.1) instructed the contractor to favour amicable settlement, only resorting to court as a last resort, and explicitly stated that 'judicial costs not recovered from the debtor will not be borne by the Awarding Authority'. Tenderers therefore had to submit a flat fee per file in which they had to absorb the risk of non-recoverable judicial costs. Intermediance & Partners CVBA — an association of judicial officers (huissiers de justice) — challenged the award. For them, the gap created an impossible squeeze: article 2 of the Royal Decree of 30 November 1976 on judicial-officer tariffs forbids them from sharing or granting partial or total rebates on their fees, costs or disbursements with third parties. A regular debt-collection company like Venturis can statistically price the risk into its margin; a judicial-officer firm cannot do so without violating its deontology. An initial extreme-urgency claim was rejected (judgment 244.166 of 3 April 2019). On the merits, however, the VIth chamber sees two distinct equality breaches. First angle: judicial officers must overestimate the non-recoverable-cost risk in their flat fee in order to remain compliant with the 1976 decree, making their price structurally less competitive than that of bidders not subject to it. That alone distorts market access. Second angle: if the margin proves insufficient and the judicial officer must in fact absorb the costs, they will violate article 2 of the 1976 decree. ISPPC argued the specifications applied identically to all bidders and that any inequality stemmed from the 1976 decree, for which it is not responsible. The Council rejects that defence: ISPPC could not ignore the impact of the 1976 decree given the very subject matter of the contract. The legitimate aim — limiting the judicial phase to solvent files — could have been achieved through less restrictive means (e.g. via award criteria or performance conditions), but nothing in the file shows ISPPC explored those alternatives. The award to Venturis is annulled; ISPPC bears 920 euros in costs.
Why does this matter?
Specification clauses are never neutral: they interact with regulations that govern specific professional categories. A buyer drafting a debt-collection contract has to remember that judicial officers are bound by a statutory tariff and cannot grant rebates or absorb costs. The same principle applies more broadly — to architects (deontological rules on fees), accountants (rules on no-cure-no-pay), lawyers — every time a price or payment clause that looks neutral can in fact deny an entire profession effective access to the contract. Bid managers in regulated professions: read the specifications with your deontology in mind. A clause that is a mere 'commercial risk' for a regular company may be a professional prohibition for you — grounds to challenge the specifications, not to bid.
The lesson
If you draft specifications for debt collection, legal services, or any regulated activity, check whether the price or risk structure is compatible with the deontology of the professional categories you want to attract. For debt collection: putting non-recoverable judicial costs on the contractor without further analysis is not sustainable — at minimum, alternatives (a 'quality of selection strategy' award criterion, a solvency-analysis performance condition) must be examined and that examination documented. As a bidder who is a judicial officer, do not stay silent — challenge.
Ask yourself
Does your specification contain a clause shifting costs to the contractor that, for some professional categories, are not 'recoverable' under their statutes? Did you document in your motivation that alternatives (via award criteria or performance conditions) were considered and found inadequate?
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 →