Partial annulment due to discriminatory specification requirement — membership requirement for association of independent bookshops is disproportionate to the subject matter of the contract and excludes tenderers without objective justification
The Council of State annuls the award of lots 1, 2 and 4 of a contract for the supply of books to a public library in Schaarbeek because the specification requirement that the tenderer must be a member of an association of independent bookshops is discriminatory, disproportionate to the subject matter of the contract, and the contracting authority provides no objective justification for the distinction.
What happened?
The municipality of Schaarbeek tendered a contract through a negotiated procedure with prior publication for the supply of books and board games to its Dutch-language public library, estimated at EUR 74,200 including VAT. The contract was divided into seven lots: adult non-fiction, adult novels, comics, children's books, Bulgarian collection, travel books, and board games. A tenderer could submit an offer for a maximum of three lots (lots 1 to 6). Section D 'Technical specifications' of the specifications required tenderers for lots 1, 2 and 4 to be members of an association of independent bookshops. NV S. submitted an offer for lots 1, 2, 4 and 7, declaring membership of 'Boekhandels Vlaanderen'. After a request for clarification, its offer for lots 1, 2 and 4 was declared irregular because 'Boekhandels Vlaanderen' did not qualify as an association of independent bookshops. Lots 1, 2 and 4 were awarded to the only remaining tenderer. NV S. sought annulment of the award decision. On admissibility, the respondent argued that NV S. had forfeited the right to invoke the illegality of the specification requirement because it had not objected during the procurement procedure. The Council categorically rejected this defence, citing the Labonorm case law (plenary assembly judgment 152.173 of 2 December 2005): the possibility of immediately challenging the specifications does not preclude invoking their illegality against subsequent decisions. The Council added a principled consideration: requiring a tenderer to identify and raise every illegality during the procedure to preserve judicial access cannot justify that an authority's unlawful conduct has less far-reaching consequences than the tenderer's failure to notice it immediately. The duty of care rests on the authority, not on the person seeking justice (cf. Constitutional Court 11 April 2023, no. 59/2023, point B 17.2). On the merits, the Council first recharacterized the requirement: although placed under 'Technical specifications', it related to the tenderer's own status (membership of an association) rather than characteristics of the goods offered, making it a selection criterion under Article 71 of the Act of 17 June 2016, not a technical specification under Article 53. The Council then tested the requirement against the principles of equality and proportionality (Articles 4 and 71(2)). Neither the procurement documents nor the administrative file explained why membership of an association of specifically independent bookshops was necessary. Bookshops that are members of 'Boekhandels Vlaanderen' and those that are members of an association of independent bookshops perform essentially identical activities: supplying and selling books. The respondent identified no differences justifying unequal treatment. The alleged 'quality guarantee' was unconvincing, particularly since the respondent itself stated the requirement was not impossible or difficult to fulfil. The award was annulled for lots 1, 2 and 4.
Why does this matter?
This judgment is significant for two reasons. First, it confirms the Labonorm case law (plenary assembly judgment 152.173) and adds a principled consideration: the duty of care rests on the contracting authority, not on the tenderer. A tenderer may presume that specification requirements are lawful and need not raise preventive objections to preserve access to judicial review. Second, it illustrates that selection criteria must be proportionate to the subject matter of the contract.
The lesson
Formulate selection criteria that are proportionate to the subject matter of the contract and for which an objective justification exists. Requiring membership of a specific organisation is problematic when similar organisations provide the same services. Do not place selection criteria under 'technical specifications' in the specifications — the legal characterisation follows from the substance, not the heading.
Ask yourself
Is every selection criterion in your specifications objectively justified in light of the subject matter of the contract? Does your criterion exclude tenderers who provide essentially the same services? Is the criterion correctly characterised (selection vs. technical specification)?
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 →