Council of State rejects application for suspension under extreme urgency against non-selection in lockable safe framework agreement for Integrated Police — four pleas not serious
The Council of State rejects the application for suspension under extreme urgency brought by SA Sevadepannages against its non-selection in a framework agreement for lockable safes for the Integrated Police (defence and security), finding all four pleas — single candidacy, turnover figures of a competitor, unannounced evaluation method and lack of framework agreement value estimation — not serious.
What happened?
The Federal Police launched a call for candidates for a multi-year framework agreement for the supply of custom-made lockable individual and collective safes for the Integrated Police and police schools. The contract falls under the Act of 13 August 2011 on defence and security procurement and the Royal Decree of 23 January 2012. The procedure is a negotiated procedure with publication (Article 22 of the Act). The call was published in July 2023. Qualitative selection proceeded in three successive phases: (1) verification of absence of exclusion grounds, (2) minimum selection criteria (minimum average global turnover of EUR 600,000 and delivery references totalling at least EUR 400,000), and (3) an optional evaluative phase for ranking if more than three candidates satisfy the first two phases. This third phase assessed four weighted aptitude criteria: financial capacity — average turnover in the safe domain (30%), technical capacity — list of public contracts exceeding EUR 200,000 (30%), technical equipment and research projects (20%), and quality management system (20%). Minimum three and maximum five candidates would be retained. Four candidates submitted dossiers: Ambassador Arms, Checkmade, De Raat Security Products and Sevadepannages. All satisfied the first two phases. The third evaluative phase was applied. The final ranking retained the top three (Ambassador Arms, Checkmade and De Raat) and excluded Sevadepannages, ranked fourth. The non-selection decision was taken on 11 December 2023. Sevadepannages applied for suspension under extreme urgency and raised four pleas. First plea (single candidacy): Sevadepannages argued that De Raat Security Products made its capacity available to Ambassador Arms (Article 79 RD 2012), which would constitute a prohibited double candidacy under Article 56 RD 2012. The Council of State found that both companies are distinct legal entities with different identities, registered offices and shareholders. The fact that one candidate makes its capacity available to another does not mean it submits two candidacies. Article 79 specifically provides for this possibility. The plea was not serious. Second plea, first branch (turnover figures): Sevadepannages challenged the turnover figures invoked by Ambassador Arms, which relied on De Raat's financial capacity. The Council found that the annexes to the candidacy dossier plausibly explained these figures and that the applicant did not demonstrate their implausibility. The plea was not serious. Second plea, second branch (criteria 3 and 4): Sevadepannages argued the respondent retained candidacies without documents for criteria 3 (technical equipment) and 4 (quality management). The Council found that the third phase is evaluative: absence of documents results in zero points, not exclusion. Non-production of documents for these criteria does not constitute an irregularity ground but translates into a lower score. The plea was not serious. Third plea (evaluation method): Sevadepannages argued the respondent failed to announce the evaluation method for the aptitude criteria. The Council held that the description of criteria in the call for candidates, including their weighting, reasonably allowed candidates to understand the evaluation basis. The applicant did not explain how prior knowledge of the method would have changed its candidacy, especially given that the data evaluated is objective. The EUR 200,000 threshold for criterion 2 was clearly announced and is not disproportionate given the estimated contract value exceeding EUR 6,000,000. The plea was not serious. Fourth plea (value estimation): Sevadepannages invoked the failure to estimate the framework agreement value and maximum quantities. The Council held that the applicant did not establish that this alleged illegality caused it prejudice: it is unrelated to the reasons for its eviction. The plea was inadmissible. The application for suspension under extreme urgency was rejected.
Why does this matter?
This ruling illustrates several important aspects of qualitative selection in defence and security contracts. First, making capacity available between candidates (Article 79 RD 2012) does not constitute a double candidacy within the meaning of Article 56: two distinct companies may validly candidate separately even if one makes its capacity available to the other. Second, in an evaluative selection phase, absence of documents for certain aptitude criteria results in zero points, not exclusion of the candidacy. Third, the weighting of criteria announced in the call for candidates may suffice to satisfy the transparency obligation, without needing to detail the exact calculation method, particularly when the evaluated data is objective. Fourth, a grievance unrelated to the grounds for the applicant's eviction is inadmissible.
The lesson
In defence and security contracts under the Royal Decree of 23 January 2012, making capacity available by one candidate to another (Article 79) does not constitute a prohibited double candidacy under Article 56. In an evaluative selection phase, failure to produce documents for certain criteria results in a zero score, not exclusion. When selection criteria are sufficiently clear and weighted in the call for candidates, the contracting authority is not necessarily required to detail its calculation method. A plea invoking an illegality unrelated to the applicant's eviction will be declared inadmissible for lack of prejudice.
Ask yourself
As a contracting authority in a defence and security contract: have I clearly distinguished in my call for candidates between eliminatory phases (minimum criteria) and the evaluative phase (aptitude criteria)? Are the weightings announced? Have I consistently handled reliance on third-party capacity by multiple candidates, ensuring each candidate is a distinct legal entity? As an excluded candidate: do my pleas actually relate to the grounds for my exclusion? Can I demonstrate concrete prejudice, i.e. a link between the alleged illegality and my non-selection?
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 →