Conflict of interest on paper, no damage in practice: why excluding a former employer cuts off the conflict-of-interest ground
The Council of State rejects Umami Catering's UDN challenge against the award of catering lots for Fedasil reception centres, because it fails to show interest in the conflict-of-interest ground: the former employer of the contested official was excluded anyway for wrong VAT rates, and the other official had no access to the bids.
What happened?
Fedasil launched a framework agreement for catering services in all Belgian asylum reception centres — 37 lots (one per centre), estimated at 90.5 million EUR excluding VAT. Simplified negotiated procedure with publication, sole criterion: lowest price. Six bidders submitted offers, including Umami Catering, Sodexo, Compass Group, Aramark and Duo Catering. After BAFO round in October 2023, the award report was drafted on 26 February 2024. The Secretary of State for Asylum signed it on 3 June 2024 — but the date "26 February 2024" was not updated, a clerical error. Umami received 15 lots, Sodexo 12, Duo Catering 7, Aramark 1. One lot (Koksijde) was not awarded due to closure. Compass Group was excluded from all lots because its BAFOs used "other VAT rates than those imposed". Umami challenged via UDN the award of 20 lots to Sodexo, Aramark and Duo. Two grounds: (1) motivation defects regarding the commitment period extension, contradictions with later documents, and signing authority under the new Companies Code; (2) conflict of interest involving two Fedasil officials — O.L., formerly at Sodexo (2012-2021), at Fedasil since May 2022; and S.N., procurement attaché, formerly at Compass Group, "closely involved" in the file. Fedasil acknowledged in its letter of 19 June 2024 that potential conflicts had been identified and measures taken: O.L.'s role limited to site visits and technical questions, no access to bids; S.N. did not take final decisions, her documentation was externally screened. The Council rejects everything. On motivation: when the applicant learns the reasons through other channels and can respond substantively (which Umami did), the objective of formal motivation is achieved — no prejudice. The date error does not harm. "OK" suffices as formal motivation for standard checks when no concrete problems arise. On conflict of interest: article 6 requires two conditions — the person must be able to influence placing or execution, and there must be an interest jeopardizing impartiality. For S.N.: her former employer Compass Group won no lot (offers irregular). So even if there was a risk of price leakage, Umami was not harmed — no interest in the ground. For O.L.: Fedasil plausibly shows she had no access to offers; her role ended before submission. Umami fails to show conflict of interest. Application rejected.
Why does this matter?
Conflicts of interest are emotionally loaded — you read "former employer of a competitor" and think: this smells. But the Council demands more: what was that person's role in this file, and above all: did it concretely harm you? If the former employer was excluded anyway (like Compass here, on its own mistake: wrong VAT rates), the complaint loses bite. An important lesson for anyone considering UDN on conflict-of-interest grounds: plead not just appearance, but also damage structure. If the beneficiary eventually won no lot, you have no interest in the ground. For contracting authorities: this ruling exemplifies "visible integrity" — Fedasil had sought advice, taken measures, and described them transparently. That made the difference.
The lesson
As bidder: when you suspect a conflict of interest, ask explicitly in your letter after notification — and base your UDN ground not only on "appearance" but also on concrete damage. Which lot did the conflicted official's former employer win that you should have won? If the alleged beneficiary was excluded or won nothing, you have no interest. As contracting authority: document in advance all measures taken to prevent conflicts (external screening, access restriction, legal advice), and be ready to list them transparently after notification. The Council values concrete measures. For motivation: a clerical error (wrong date, unamended report) is not fatal if the bidder could respond substantively.
Ask yourself
Building a UDN ground around conflict of interest? Answer two questions first: (1) could the official actually influence placement or execution (not "administrative help", but "drafting the award report")? (2) did their former employer win a lot you otherwise would have got? A "no" on either: your ground is inadmissible for lack of interest.
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 →