Even when your contract falls outside the procurement law: awarding 64 out of 100 points on publicly available financial ratios is discriminatory
The Council of State rejects RESA's appeal against the Walloon Minister's annulment of its award of a judicial debt-collection contract to bailiff firm Tintin: even for 'excluded' legal services (article 28 §1 4° of the 2016 Procurement Act), the equality principle applies, and using 64 of 100 points on publicly available balance-sheet ratios while you yourself select which firms to consult means you can predict the winner before any bid arrives.
What happened?
The Liège grid operator RESA decided in 2019 to award two debt-collection contracts: one for amicable recovery, one for judicial recovery. For the judicial recovery, RESA relied on article 28 §1 4° d-e of the 2016 Procurement Act: bailiffs' legal services are excluded from the procurement law. RESA still wanted some form of competition, however. On 2 July 2019 it invited four bailiff firms (Resalex, Tintin, LEX.EKHO and Huy 2 Rives) to submit a bid, deadline 10 July, 11 a.m. — eight days. The award criterion: four financial ratios drawn from the firms' published balance sheets for 2014-2017 (solvency, liquidity, cash flow, personnel costs over gross margin). For each ratio in each year, top scorer 4 points, second 2, third 1. Total weight: 64 of 100. Resalex asked on 4 July to bid via partner firm Landurcy; RESA agreed within ten minutes. On 11 July another firm — Bordet — appealed to the Walloon Government, complaining it had not been consulted and that the criteria were unlawful. On 12 July at 3 p.m., 52 hours after the deadline, RESA's CEO awarded the contract to Tintin. On 4 October 2019 the Walloon Minister annulled the award via general tutelle (oversight) on two grounds: discriminatory criteria based on publicly known data with 64% weight, and irregular non-consultation of Bordet. RESA appealed to the Council of State. The VIth chamber dismisses. The constitutional equality principle (article 10) applies to any contract a public authority signs with an economic operator, including 'excluded' procurement contracts. Using balance ratios as a selection sieve is fine; using them as the dominant award criterion when you yourself pick who is consulted lets you decide the outcome before any bid arrives — for 64 of 100 points. The 52-hour gap between deadline and award decision (with another 36 points still to assess) belies RESA's claim that the calculation was complex. The reasonably similar final scores (30, 27, 22, 5) don't disprove the issue: the identity of the winner was predictable for almost two-thirds of the points. RESA also had to accept Landurcy at the last minute (not in its precalculations) and modified the criterion mid-evaluation by dropping one ratio for one bidder — both moves reinforcing the manipulation pattern. The tutelle authority did not commit a manifest error of assessment. The second ground (non-consultation) is rendered inoperative since the first one suffices. Appeal dismissed; RESA owes a procedure indemnity of €770.
Why does this matter?
For anyone awarding contracts outside the procurement law (bailiffs, lawyers, certain legal, social or cultural services), this judgment is a yellow card. Article 28 exclusion does not mean unbounded freedom. The equality principle from the Constitution and EU treaties follows you wherever you select an economic operator. For bid managers in law and bailiff firms: if you suspect an 'excluded' selection is rigged, tutelle appeal can work — especially where quantifiable public data weighs heavily in the award. For local authorities and intercommunals subject to tutelle: this shows tutelle authorities actively annul on material discrimination, not only on procedural grounds. The 'intuitu personae' argument is firmly limited: trust is legitimate but not a free pass for criteria that make the outcome predictable.
The lesson
If you award a contract for a service excluded from procurement law: behave as if procurement law applied, at least for the equality principle. Concretely: (a) if you use public data as an award criterion (balance sheets, turnover, registry data), keep its weight modest — never above 30%. (b) Distinguish clearly what is selection (qualifying to participate) from what is award (quality of the bid). (c) If you yourself pick who is consulted, double the rigor on neutrality: 'I chose who participates' + 'I chose the criterion' + 'the criterion is calculable in advance' is a triple jeopardy for competition. (d) Firms you consulted in an earlier procedure cannot simply be excluded later on the back of a previous price dispute without neutral, non-arbitrary justification. As a contender for contracts: keep all your correspondence and look for striking patterns — a competition you weren't told about, but where your former client knows exactly the selection criteria that disadvantage you, is a legitimate object for tutelle appeal.
Ask yourself
If I had to take my award decision before receiving any bid — based purely on publicly available data — for how many of 100 points could I already predict the winner? If that answer is above 30%, my procedure carries a serious discrimination risk.
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 →