Rejection of suspension application for outsourced call center contract for RESA — unannounced sub-sub-criteria satisfying CJEU triple test and energy data confidentiality not compromised
The Council of State rejected SA IKANBI BELGIUM's urgent suspension application against the award to SA N-ALLO of the outsourced call center contract for RESA (gas and electricity sectors), the applicant having failed to demonstrate that unannounced sub-sub-criteria breached the three CJEU C-677/15 P conditions, or that N-ALLO's offer — as a 100% subsidiary of Engie Electrabel — compromised confidentiality obligations under the Electricity and Gas Decrees.
What happened?
RESA IT launched a special sectors services contract in May 2024 for an outsourced call center for gas and electricity sectors. The contract was awarded through a negotiated procedure with prior competition for 24 months renewable three times. Nine candidates applied; six were selected. Four tenderers submitted offers by 6 September 2024, including SA IKANBI BELGIUM. After a negotiation phase, the contract was awarded on 6 November 2024 to SA N-ALLO (92.69 points/100) for €4,803,938.70 excl. VAT, ahead of SRL Yource Holding (85.62 points) and IKANBI (85.25 points). For award criteria 2-6, offers were evaluated using weighted sub-sub-criteria not listed in the specifications. IKANBI filed an urgent suspension application on 22 November 2024, raising two grounds. The first alleged violation of Walloon Electricity and Gas Decrees regarding data confidentiality: N-ALLO being a 100% subsidiary of Engie Electrabel (energy supplier), the award would compromise RESA's confidentiality obligations as network operator. The second alleged violation of transparency and equality through unannounced sub-sub-criteria. The Council rejected both grounds. On the second ground (examined first), the Council applied the CJEU triple test (C-677/15 P): the sub-sub-criteria related to elements in the technical clauses referenced by the sub-criteria; the applicant failed to demonstrate concretely how prior knowledge would have influenced its offer; the sub-sub-criteria had been formalized before opening of tenders and the weighting had no discriminatory effect. On the first ground, the Council found N-ALLO's offer contained no reservation regarding confidentiality obligations, data access occurred via a VDI environment controlled by RESA, and the applicant failed to demonstrate how decree violations constituted a substantial irregularity under Article 74 §1 of the Royal Decree of 18 June 2017.
Why does this matter?
This ruling provides a detailed application of the CJEU triple test (C-677/15 P) for assessing the legality of unannounced sub-sub-criteria. The Council confirms that a contracting authority may determine sub-sub-criteria and their weighting post factum, provided they correspond in substance to announced criteria, would not have influenced offer preparation, and were not adopted with discriminatory elements. However, the ruling imposes a concrete burden of proof on the challenging tenderer: abstract assertions that prior knowledge would have influenced the offer are insufficient — specific elements or choices must be identified. The ruling also addresses data confidentiality in the energy sector: a tenderer's corporate link to an energy supplier does not constitute grounds for irregularity where adequate technical (VDI, access controls) and contractual measures are in place.
The lesson
As a contracting authority in special sectors: unannounced sub-sub-criteria are permissible under the CJEU triple test (no modification of announced criteria, no influence on offer preparation, no discriminatory effect). Formalize them before opening offers and retain evidence. Where the contract involves access to sensitive network operator data, implement adequate technical and contractual safeguards. As a tenderer: when challenging unannounced sub-sub-criteria, do not limit yourself to abstract assertions. Demonstrate concretely how prior knowledge would have changed your offer. When invoking decree violations, explain specifically how each provision is violated and how this constitutes a substantial irregularity.
Ask yourself
As a contracting authority: do your sub-sub-criteria correspond in substance to elements announced in the technical clauses? Were they formalized before opening of offers? Does their weighting reasonably reflect the relative importance of evaluated elements? As a tenderer: can you concretely demonstrate that prior knowledge of sub-sub-criteria would have changed your offer? Can you identify specific choices you would have made differently?
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 →