Aggression-management training is not security consultancy: the most expensive bidder loses the licensing argument
Schouten & Nelissen, at 23,228 euros the dearest of three bidders for aggression-management training at the Belgian Immigration Office’s detention centres, argued that the winner — Vormingscentrum Guislain, at 10,290.47 euros — lacked the licence and accreditation required by the private security act, but the Council of State held prima facie that the act did not apply to this training and that a reassessment of the quality criterion could not have offset its lowest price score.
What happened?
The Immigration Office of the Federal Public Service Home Affairs tendered a services contract for aggression-management training for all staff of its detention centres. The contract formed part of an aggression-management plan drawn up for those centres in view of the particular circumstances in which detainees are held and the great diversity of that population; the plan stated expressly that all staff must be safety-competent so that occupational accidents are avoided. The contract — a schedule-of-rates contract — was placed by negotiated procedure without publication under article 17, § 2, 1°, a) of the Law of 24 December 1993. By registered letter of 2 May 2011 three undertakings were invited to tender by 10 June 2011: Management Consulting and Research (MCR), Vormingscentrum Guislain and Schouten & Nelissen. The contract documents described the minimum content in detail — aggression and communication rules, traumatic events, prevention and safety policy, with teaching methods extending to peer-review exercises with an actor supplied by the training firm, plus an annual refresher over five years — and imposed conditions such as delivery in Dutch and French, groups of at most fifteen, and a syllabus remaining the authority’s property afterwards. The award criteria, in descending order of importance, were price (extremely important), quality of the training offered (very important) and experience with similar contracts (important). All three tendered. In the award decision of 3 August 2011 the authority found all tenders administratively regular and compared the prices: Vormingscentrum Guislain 10,290.47 euros, MCR 15,730.00 euros and Schouten & Nelissen 23,228.00 euros. On quality and on experience the three were assessed as equivalent. The ranking followed of itself and the contract went to Vormingscentrum Guislain. Schouten & Nelissen sought suspension under extreme urgency on 18 August 2011; Vormingscentrum Guislain intervened. Because article 65/15, first paragraph, of the Law of 24 December 1993 — inserted by the Law of 23 December 2009 and, under article 65/31, applicable below the European thresholds as well — does not require proof of serious harm difficult to repair, the Council had only to examine whether serious pleas were raised. The first plea was the striking one: according to Schouten & Nelissen, training of this kind fell under the Law of 10 April 1990 on private and particular security, so that the provider needed both a licence as a security consultancy undertaking and accreditation as a training institution — which it itself had held since 14 June 2011, but Vormingscentrum Guislain and MCR did not. The Council examined the act. Article 1, § 6, defines a security consultancy undertaking as one providing third parties with advice on preventing offences against persons or property; this contract concerned not advice but the organisation of training, and the contract documents named the avoidance of occupational accidents, not the prevention of crime, as its aim. The travaux préparatoires to the Law of 7 May 2004 showed, moreover, that security consultancy was brought within the security act because such undertakings learn the strengths and weaknesses of their clients’ security mechanisms — a rationale unconnected with this training. The intervening party rightly pointed out that the same provision excludes advisory activity that is not offered as a separate service but is an inherent component of another main activity. The accreditation requirement fared no better: article 1, § 8, defines a training institution as one organising training in the fields of paragraphs 1 or 3, which concern guarding and security undertakings; the travaux préparatoires justified that requirement by the risk of prospective security guards receiving worthless certificates from unaccredited institutions. The content of this training did not, prima facie, match the courses governed by the Royal Decree of 21 December 2006. The Council added a painful observation: Schouten & Nelissen did appear on the list of licensed security consultancy undertakings, but not on that of accredited training institutions, and produced no accreditation — so that on that limb it did not even appear to have an interest. The first plea was not serious. The second plea targeted the reasoning. In so far as it complained that the authority had attached no weight to the licence and accreditation, it merged with the first plea. In so far as it called the assessment of the second and third criteria vague and stereotyped, the Council maintained a familiar balance: the authority enjoys a wide margin in applying the award criteria and the Council may not alter the ranking, but it may verify whether the assessment was carried out with due care and rests on sufficiently expressed and substantial grounds. Finding tenders ‘equivalent’ presupposes that they were in fact compared; the administrative file moreover contained, as document 10, an internal assessment document setting out and comparing the features of all three tenders on quality and experience. For the third criterion the terse reasoning sufficed, read together with the contract documents, which asked only for references of earlier similar contracts in a multicultural environment; not every reference of every bidder had to be named in the award decision. That left the reasoning on the second, quintessentially qualitative criterion. There the plea failed on interest. It is for the applicant to make plausible that its plea, if serious, could result in its tender still emerging as the most advantageous, if need be after a wholly fresh assessment. Schouten & Nelissen had an equal score on the third criterion (important) and the lowest on the first (extremely important). Even if a reassessment of the second criterion (very important) placed it above both others, that would not appear to offset its lowest price score. It moreover gave no indication in its application why its tender should score better on that criterion, and did not contest at the hearing the grounds in the internal assessment document. The second plea was not serious either. Documents arriving after the close of the debates did not warrant reopening them. The Council admitted the intervention, dismissed the application and ordered Schouten & Nelissen to pay costs of 175 euros and the intervening party the 125 euros attached to its intervention.
Why does this matter?
The most attractive plea in a procurement action is often the one that eliminates the competitor outright: it was never allowed to perform this contract at all. This judgment shows how carefully such reasoning must be built. Schouten & Nelissen read the security act from the subject matter — aggression, safety, staff in detention centres — whereas the Council reads it from its own definitions and its raison d’être: security consultancy is advice on preventing criminal offences, and the accreditation requirement for training institutions exists to protect prospective security guards from worthless certificates. A course on communication rules, trauma processing and debriefing conversations, aimed at avoiding occupational accidents, falls outside that. The travaux préparatoires do the heavy lifting here — a reminder that a party invoking a regulatory entry requirement must be able to show its ratio legis, not merely its wording. The second half of the judgment is at least as practical. The award decision worked not with points but with an order of importance (AAA, AA, A) and the finding that the tenders were ‘equivalent’ on quality and experience. That looks thin, and the Council acknowledges the reasoning is terse. Yet it holds, for two reasons worth remembering: a finding of equivalence presupposes that a comparison took place, and the administrative file contained an internal assessment document making that comparison concrete. For authorities that is reassuring but no licence; for bidders it is an invitation to obtain the file before declaring the reasoning non-existent. Finally, the harshest lesson: interest in a plea is measured by its possible effect on the ranking. A bidder last on the heaviest criterion who asks for a reassessment of a lighter one, without showing why it should win there — and without contesting the grounds in the file — never reaches a ruling on the merits.
The lesson
If, as a bidder, you invoke a licensing or accreditation requirement to exclude a competitor, test it first against the definitions and the ratio legis of the act concerned, not against the subject matter of the contract. Check too whether you meet that requirement yourself: Schouten & Nelissen turned out to be licensed as a security consultancy but not accredited as a training institution, which undercut its own plea. Always build the bridge to the ranking as well. A defect in the reasoning on a criterion where you already scored equally does not help you when you are last on the heaviest criterion: explain how your tender could become the most advantageous after reassessment, and contest the grounds in the administrative file rather than leaving them unaddressed at the hearing. As an authority, you may weigh criteria in descending order of importance without a points system, and your reasoning may remain terse as long as, together with the contract documents, it allows the reader to understand what you assessed — but make sure the administrative file evidences the comparative work. The internal assessment document saved this decision. And in a contract with a regulatory dimension: state expressly in the contract documents which licences or accreditations you do require, so the argument need not be had afterwards.
Ask yourself
Have you tested the licensing requirement you invoke against the statutory definition and against the reason the legislator introduced it, or are you reading it from the subject matter of the contract? Do you yourself meet the condition you hold against your competitor? Can you show that your plea, if it succeeds, could tip the ranking in your favour — or are you attacking a criterion that cannot offset your lowest score on the heaviest one? Have you read the administrative file before calling the reasoning stereotyped, and have you actually contested the grounds you found there? And as an authority: does your file show that you genuinely compared the tenders before calling them equivalent?
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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 →