A volume threshold of 70,000 cases a year is fine — but 'for one and the same client' is a separate decision that needs its own justification
The Council of State suspends the non-selection of bailiff Bordet for the joint debt-collection contract of SWDE and CILE because the selection criterion requiring 70,000 cases per year handled 'for one and the same client' lacks an independent justification and unduly restricts competition — while the previous tender allowed cumulation across multiple clients.
What happened?
The Société wallonne des Eaux (SWDE) and the Compagnie intercommunale liégeoise des eaux (CILE) launched a joint procurement for outsourcing both amicable and judicial debt collection — three years initial duration, renewable for five, with an estimated volume of 82,000 cases per year. SWDE acted as 'lead contracting authority' for the whole. The tender used a negotiated procedure with prior call for competition (special sectors). The selection criterion for technical and professional capacity required three certificates of proper execution showing that the bidder had handled at least 70,000 collection cases annually in 2019, 2020 and 2021 'for one and the same client'. Cumulation across years or clients was expressly excluded. The previous tender allowed cumulation: lot 1 (West Zone) needed 50,000 cases for up to 5 clients; lot 2 (East Zone) 20,000 cases for up to 2 clients. The new tender was not divided into lots. The bailiff firm Alain Bordet — qualified by SWDE itself in the prior market consultation as 'a major operator in the sector' — could not meet the criterion and stated so explicitly in its ESPD. On 9 May 2023 SWDE decided not to select Bordet, citing only the failure to meet the 70,000-cases-for-one-client requirement. Bordet had earlier challenged the tender directly, but that suspension was rejected as time-barred (arrest no. 256.433 of 4 May 2023). Under the Labonorm doctrine, Bordet could still raise the unlawfulness of the tender incidentally against the non-selection decision. The Council found the 70,000-case threshold prima facie defensible — proportionate to the estimated 82,000 cases per year. But the additional 'for one and the same client' restriction was a separate limitation that SWDE did not justify on its own merits. Its entire explanation ('intrinsically linked to our choice of a single lot') justified only the lot structure, not why a service provider with the same total volume across multiple clients would be technically unfit. The single-client requirement also de facto blocked the right under article 150, § 1, to rely on the capacity of other entities — while SWDE itself stated in its observations that it had no interest in unduly limiting competition. The non-selection decision was suspended with immediate effect. The challenge against the tender itself remained inadmissible.
Why does this matter?
Two pivots. Substantively: a high volume threshold (here 70,000 cases per year) can be defended as long as it is proportionate to the actual scope of the contract. But every additional restriction — 'for one and the same client', 'in the same sector', 'at the same location' — is an independent decision that requires its own justification. Saying 'it follows from our choice of a single lot' justifies the lot scope, not why alternative track records would be technically unfit. The single-client requirement also constrains the right to rely on third-party capacities or to bid jointly, both protected by article 150. Procedurally: this confirms the Labonorm doctrine. Missing the 15-day window against the tender itself is not the end — illegality can be raised incidentally against any later decision in the procedure (selection, award, rejection). Important breathing room — but not a free pass: the 15-day deadlines against later decisions still apply.
The lesson
As contracting authority: when imposing a volume threshold in a selection criterion, ask yourself for every side-restriction ('for one client', 'at one location', 'in the same sector') whether you can justify it in two sentences against the question 'why is this necessary to guarantee the execution of this contract?'. If your only answer falls back on 'we chose a single lot', that is a sign the extra requirement is disproportionate and the award is vulnerable. As bidder: if you miss the deadline against the tender, focus on the next pivot point in the procedure. A non-selection decision based on an unlawful tender provision can still be attacked under Labonorm.
Ask yourself
Does your selection criterion combine a threshold with one or more restrictive conditions ('for one client', 'in the same period', 'within the same sector')? Write a separate justification line for each restriction in your administrative file, linked to a specific execution risk or feature. Threshold: if your justification fails to explain why a competitor with the same total volume across multiple clients would be technically unfit, it lacks coherence and is likely to be suspended.
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 →