Turnover threshold doubled without explanation? That's prima facie an unjustified restriction on competition
The Council of State suspends the approval of the tender specifications for the 21 July national holiday festivities because the Belgian State raised the minimum turnover requirement from a cumulative €2 million over three years to €2 million per year — without any concrete, consistent justification in the administrative file.
What happened?
The SRL Shadow To Live challenged in extreme urgency the specifications of the contract 'Organisation des festivités à l'occasion de la fête nationale le 21 juillet' (ref. 2023/028). The contract covers the public spectacle, a live TV broadcast, security, bars and catering, and promotion — and this time covered three editions (2024, 2025 and 2026), split into a firm tranche and two conditional ones. The point of dispute: the selection criterion on economic and financial capacity. For the 2023 contract the specifications had required a cumulative total turnover of €2,000,000 over the three previous financial years. For the new specifications the same €2,000,000 threshold was required, but now for EACH of the three previous years separately. Effectively a six-fold increase on a cumulative basis. The State defended this with two arguments. One: a contracting authority is free to tighten or relax its criteria over time. Two: the current contract covers three editions instead of one, which would justify the higher requirement. The Council of State tests both arguments against the file. The first: mere freedom is not enough to justify a concrete choice — there must be a substantive link with the subject of the contract. The second argument is disproved by the administrative file itself: document 19 shows the increase was already planned when the contract still only covered one edition (21 July 2024). Only later, after consultation with the Finance Inspectorate, was the contract restructured into a multi-year format. The 'three editions' justification is therefore not the real reason for the increase. At the hearing the State added a third argument — 'the wording needed clarification' — but this was not in the note of observations or the file, and therefore carries no weight. Conclusion: prima facie no admissible justification found in the file for the increase. The ground is serious. The balance of interests does not favour the State (which identifies no concrete disadvantages of a suspension). Suspension ordered, with immediate execution.
Why does this matter?
Selection thresholds — turnover, experience, references, financial ratios — are a classic battleground because they shape the playing field from the outset. A contracting authority has discretion to set them, but that discretion is not unlimited: thresholds must be linked and proportionate to the subject of the contract. More importantly for everyday practice: an authority that adjusts the strictness between two consecutive contracts with comparable scope must be able to justify that adjustment with concrete, consistent evidence from the administrative file. 'We have discretion' is not an argument. And arguments that only surface at the hearing without supporting documents carry no weight. For bidders the message is: if a tightened threshold excludes you, request access to the administrative file immediately and compare with the previous edition — the chronology of the tender's drafting can be decisive.
The lesson
If you're a contracting authority tightening a selection threshold compared to a previous, comparable contract: ensure before publication that your administrative file contains a concrete, coherent justification. It must appear in internal documents — not surface only at the hearing. As a bidder affected by a tightened threshold: request the administrative file and reconstruct the chronology. Was the tightening decided before or after an objective change to the subject (duration, volume, complexity)? If the tightening predates that change, the multi-year argument falls away.
Ask yourself
Does your new tender raise the turnover threshold by more than 50% compared to a previous contract with comparable subject and budget? Can you back that increase with a concrete, pre-publication reason present in your administrative file? If not, you face a real suspension 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 →