A contracting authority can require its bidders to work with a supplier who never submitted a bid — provided that supplier falls under a statutory exclusion ground
The Belgian Council of State rejects the action of three competing bailiffs against a TMVW tender that imposes cooperation with 'central bailiff Philip Scheir bvba' (appointed without competition) for the legal leg of external debt management — statutory bailiff tasks fall outside procurement law via art. 28 §1 4° e) of the 2016 Act, and without a cross-border element European transparency obligations also do not apply.
What happened?
TMVW, the Flemish drinking water company with 680,000 customers and 35,000 own water harvesters, launched in 2019 a framework agreement for external debt management in two lots. Lot 1: amicable collection — proactive customer contact, letters, telephone, possible site visits. Lot 2: legal collection — lawyer services, formal notices, drafting and serving summonses, pleading at hearing. Simplified negotiated procedure with publication, four-year term. In the tender (Part 3 'technical provisions') TMVW imposed an unusual obligation: the winning lawyer of lot 2 had to work via the digital platform of a specific 'central bailiff office' — Bailiff Philip Scheir bvba from Antwerp. This bailiff was named in the tender, was not appointed via competition, and its tasks included serving summonses and judgments, providing a digital platform for case exchange, monthly reporting and supporting the lawyer throughout the entire collection process. The applicants — two competing bailiff offices and an individual bailiff — challenged both the tender (insofar as it contained the obligation to cooperate with Scheir) and the award decision to Scheir himself. Two grounds. First ground: violation of art. 28 §1 4° (exclusion grounds) combined with art. 108 (social and specific services) and art. 158-159 (procedures). According to the applicants, the exceptions to procurement law are cumulative: a bailiff falls outside the law only if (1) appointed by a court or by law for specific tasks AND (2) those tasks are performed under court supervision. Scheir's tasks go far beyond statutory bailiff tasks (logistics, digital platform, cooperation with lawyers) and therefore fall under the law — competition should have been organised. Second ground: even if the exception applies, the fundamental TFEU principles (free movement of services, equality, transparency) and the Belgian principles (art. 10-11 Constitution, good administration) require some form of competition — at least appropriate publicity and transparent inquiry. TMVW defended itself on art. 28 §1 4° e) of the 2016 Act: 'other legal services that in the Realm are connected, whether incidentally or not, with the exercise of public authority'. Scheir's services (article 519 §1 line 2 1° Judicial Code: drafting and serving writs, executing judicial decisions) are connected with the exercise of public authority and are therefore expressly excluded from the Act. The Council of State follows TMVW. On the first ground: art. 28 §1 4° e) is the literal transposition of art. 10 d) v) Directive 2014/24, which the CJEU in case C-264/18 P.M. and others (6 June 2019) declared compatible with the principle of equality, the principle of subsidiarity and articles 49 and 56 TFEU. Services connected with the exercise of public authority are 'by their nature' not comparable to other services — the EU legislator was entitled to exclude them from the scope. The applicants wrongly mix the autonomous exclusion ground of art. 28 §1 4° e) with that of art. 28 §1 4° d) (bailiffs appointed by a court, with cumulative conditions). On the second ground: the CJEU has 'consistent case law' that TFEU freedoms do not apply in purely internal situations. The bailiff profession is reserved to Belgians (art. 510 §3 3° Judicial Code) and exercisable within one judicial district (art. 516 line 3 Judicial Code). The applicants are Belgian bailiffs, the area of operation is Flanders, the debtors are Flanders-resident customers of a water company. No 'clearly cross-border element', no application of TFEU principles. Action rejected.
Why does this matter?
For contracting authorities in sectors with 'statutorily reserved' services (bailiffs, notaries, lawyers in certain roles, tax officials, court mandataries) this judgment confirms they may DIRECTLY designate those services without competition — and may anchor that designation in another tender as a mandatory cooperation partner. This opens space for 'mixed' procedures where the competitive part is tendered, but embedded in a pre-defined ecosystem around a non-competitive party. For service providers landing in such mandatory chain cooperation: realise your commercial freedom is limited — tariff negotiation with the central bailiff, choice of IT platform, information flows — and build that dependency into your BAFO price.
The lesson
If as a contracting authority you procure a contract part of which enjoys a statutory exclusion ground (bailiff, notary, lawyer in certain roles): feel free to directly award that part — and include it in your tender for the competitive part as a mandatory cooperation partner. But ensure: (1) you cite the correct legal basis in the tender (art. 28 §1 4° d) or e), with corresponding conditions); (2) the non-competitive party is named explicitly; (3) the task division between competitive and non-competitive parts is clear; and (4) you build no compensation for the non-competitive party that effectively amounts to a disguised award. As a lawyer or service provider bidding on such a 'mixed' procedure: ask explicitly in the Q&A about the tariff structure and task division with the imposed partner, and build the cooperation cost into your price.
Ask yourself
For every contract where the tender requires cooperation with a specific (pre-chosen) supplier: can you point to the exact legal basis in the 2016 Act justifying this direct designation? No legal basis = potential weak point for competitors. As a bidder: have you explicitly costed the impact of the imposed cooperation in your BAFO price?
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 →