A selection criterion may require you to have personnel — not to set aside a specific number of people for this contract
The Council of State suspends the award of BEP Environnement's textile collection contract to Oxfam because the selection criterion '4 drivers and 2 supervisors for the management of the contract' is not a general capacity criterion but a requirement on the specific deployment of personnel — which selection criteria are not allowed to be.
What happened?
BEP Environnement, the intermunicipal waste-management body of Namur, launched a contract in 2022 for 'the collection, sorting and recycling of used textiles and leather in the BEP recycle parks' — a negotiated procedure without prior publication, estimated below the European threshold. Five operators were invited: NV Curitas, Oxfam Solidarité, Terre asbl, Les Petits Riens and Recytex Europe. Four submitted offers. Under 'qualitative selection' in the specifications, BEP included a criterion on 'the personnel that will be deployed for the operations of collection, sorting, recycling and management of the contract', with as minimum requirement: 'the bidder has at least 4 drivers and 2 supervisors for the management of the contract'. On 21 December 2022 BEP requested additional information from Curitas about its drivers. Curitas replied on 22 December 2022: 'For the execution of this contract, 2 permanent drivers (Jacques Cartiaux and Jean-François Thorel) and 1 reserve driver (Pascal Hoyas) will be permanently made available.' On 28 December the examination report concluded that Curitas did not meet the selection criterion and proposed to award to Oxfam. On 18 January 2023 BEP took that decision. On 31 January Curitas wrote that it wished to 'correct' its reply — there were in reality 6 drivers and 2 office staff — but BEP refused this late correction. Curitas went to the Council of State under extreme urgency. The Council first deals with a procedural defence: BEP argued that art. 71 (selection criteria) does not apply to a negotiated procedure without prior publication below the European threshold — which is in principle correct under art. 42, §3, 1°, 2° of the law of 17/06/2016. But by including selection criteria itself in its specifications, BEP voluntarily made art. 71 applicable. Consequently, that application must comply with art. 68 of the Royal Decree on Awarding 2017. On the substance, the Council rules: the requirement concerns 'staff specifically assigned to the execution of this contract', not the general capacity of the bidder. Drivers are prima facie not 'technicians' within the meaning of art. 68, §4, 2°. And art. 68, §4, 8° (declaration of the average annual workforce over the past three years) actually suggests that selection criteria on human resources should relate to capacity 'in the abstract', not to persons specifically assigned to this contract. The criterion is prima facie unlawful. Suspension granted. Bonus: BEP refused to disclose the report on the offers (piece 12) and the award decision itself (piece 13) to Curitas, citing trade secret. The Council swept that aside — anyone invoking trade secret must concretely identify which data are protected. Vague references to 'prices' without identifying the specific confidential data are not enough.
Why does this matter?
For labour-intensive services — cleaning, security, transport, maintenance — it is tempting to put concrete numbers in the specifications about how many people the bidder must deploy. That seems logical: you want certainty about execution. But this ruling draws a sharp line: a selection criterion may require the bidder to have enough personnel in general (for example via a declaration of average annual headcount), not to set aside a specific number of people for this contract. Whoever wants the latter must put it in the execution conditions or as an award criterion — not in the selection phase. For bidders who have been performing the same work successfully with fewer people for years, this is an important defence: a contracting authority cannot — through the back door of selection criteria — restrict the market to operators with oversized teams.
The lesson
If as a contracting authority you want to secure personnel deployment: do it through execution conditions or through an award criterion on 'quality of approach'. Do not place it as a minimum requirement at the selection stage. If you are operating below the European threshold and choose a negotiated procedure without prior publication: know that the moment you include selection criteria, art. 71 and art. 68 of the Royal Decree on Awarding become fully applicable. If you are a bidder excluded on a selection criterion that addresses specific staff deployment for this contract: read art. 68, §4 of the Royal Decree on Awarding — if the means of proof is not expressly listed, the criterion is vulnerable.
Ask yourself
Does your selection criterion contain phrases like 'for this contract', 'for the management of the contract', 'assigned to the execution'? Then you are in unsafe territory — selection criteria must test general capacity, not project-specific deployment.
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 →