Venice 2015: the Council of State suspends the award of the Belgian pavilion to the non-profit Normal over a too-lenient selection and a possibly biased jury
When the French Community awarded the contract to represent it in the Belgian pavilion at the 2015 Venice Art Biennale to the non-profit Normal — the project of Vincent Meessen — the Council of State suspended that award under extreme urgency, because the winning artist’s CV and ‘monograph’ did not establish the required technical capacity while other candidates had been rejected on exactly that point, and because four of the seven voting jury members turned out to have close ties to Meessen.
What happened?
By a notice in the Bulletin of Tenders of 20 December 2013, the French Community put a services contract out to open tender: its representation and the occupation of the Belgian pavilion in the Giardini at the 2015 Venice Art Biennale, through an unpublished artistic project by a visual artist together with a curator. The allocated budget was 370,000 euros including VAT. As proof of technical capacity, the specifications required, among other things, a particular link with the French Community, a CV evidencing at least two solo exhibitions in internationally renowned museums or art centres (one inside and one outside the artist’s country of residence), and at least one monograph devoted to the artist, published by a recognised publisher. The award criteria were largely artistic and qualitative (relevance of the artistic intentions 25%, innovative/contemporary character 25%, quality of the installation sketch 10%, communication plan 20%, technical-organisational methodology and financial realism 20%). Fourteen artists submitted a project on time, including the applicant Charles Szymkovicz and Vincent Meessen, represented by the non-profit Normal. Even before the expert committee met on 26 March 2014 — and without the experts being involved — seven of the fourteen bidders had already been excluded for failing the qualitative selection criteria. The committee ranked Szymkovicz’s project last with 8.4/20 and Normal’s first with 15.20/20. On 7 April 2014 the French Community awarded the contract to Normal. The decision was notified by email on 8 April (merely informing the applicant that the contract had not been awarded to him) and by registered letter on 9 April with the reasons; the applicant filed an extreme-urgency application for suspension on 25 April. The French Community first pleaded that the application was out of time, arguing the period ran from 9 April. The Council rejected that objection: for this contract subject to European publicity, the reasoned award decision had to be communicated both electronically and by registered mail at the same time; the email of 8 April contained only information and thus did not form part of that double communication, so the period had never started to run. The Council also rejected the objection of lack of interest: a regular bidder has an interest in having the regularity of the procedure reviewed, especially where its complaints touch an essential phase such as the analysis of the bids. On the merits, the Council found two complaints serious. First, the selection of Normal: Meessen’s CV did not allow the two required solo exhibitions to be identified — ‘Patterns for (re)cognition’ (Ghent, 2013) was listed without the asterisk used to mark exhibitions — the ‘recent press’ section did not show that the articles were specifically devoted to Meessen, and the required monograph was missing (the brochure for the ‘Mi ultima vida’ exhibition in Mexico was not enough). The leniency towards Normal contrasted sharply with the strictness with which five other candidates had been rejected for lacking solo exhibitions and four for lacking a monograph; the French Community had thus disregarded the specifications clause on technical capacity and its duty of care. Second, impartiality: four of the seven voting members of the committee had recent close ties to Meessen (Ms Josse invited him to the Frac Lorraine in 2011, Ms Schmitz collaborated with him in 2012, Mr Muteba Luntumbe at an art festival in 2007, and Ms Dubois devoted a sympathetic article to him). That proportion was enough to colour the outcome of a simple-majority vote; the appearance of bias made that ground serious too. The complaint about the vagueness of the award criteria, by contrast, was declared inadmissible for lack of concrete support. In the balancing of interests, the French Community put forward nothing weighing against a suspension. The Council suspended the award decision of 7 April 2014, rejected the application for the remainder, ordered the immediate execution of the judgment, kept the bidders’ projects provisionally confidential and reserved the costs.
Why does this matter?
The judgment shows that an artistic contract — however subjective the assessment — does not escape the hard rules of qualitative selection and equal treatment. The Council expressly accepts that award criteria for an artistic performance may carry a wide margin of appreciation, which it will not redo; but selection on documents is another matter: an authority that demands two solo exhibitions and a genuine monograph from one candidate, and rejects him for not having them, cannot turn a blind eye to the same gaps in the winner. That unequal yardstick — strict for nine losers, lenient for the winner — is exactly what the specifications and the duty of care forbid. The judgment is also a sharp lesson on impartiality in a small sector: in Belgian contemporary art the players know one another, but when a majority of the voting jury members have recent ties to a single candidate, the mere appearance of bias is enough to taint the whole assessment. Finally, the case is a reminder that the appeal period for a rejected bidder only runs from a correct, complete double communication of the reasoned decision — a merely informative email does not start the clock.
The lesson
For bidders: do not be discouraged by a last place. A regular bidder retains an interest in review where a complaint touches the whole procedure or an essential phase. Check carefully whether the award decision was communicated fully and correctly — electronically and by registered mail, with reasons — because only then does your period start; a merely informative email is not enough. Build your bias complaint on concrete, recent and demonstrable ties, not on suspicion. For authorities: apply the selection criteria with equal strictness to everyone. If you require two solo exhibitions and a monograph, assess them for each candidate on the documents submitted, not on what experts ‘will surely know’ — especially where selection takes place before the jury meets. Compose a jury that also avoids the appearance of bias: occasional contacts are unavoidable in a small art world, but a majority with recent ties to one candidate is a real risk. And remember the double communication: it protects not only the bidder but also the soundness of your award.
Ask yourself
Have you, as a bidder, checked whether the reasoned award decision was communicated to you both electronically and by registered mail — so that your appeal period has in fact started? Do you realise that, even ranked last, you retain an interest where your complaint touches the whole procedure? And as an authority: do you apply your selection criteria as strictly to the winner as to those you reject? Can you show, for each selected candidate, on the documents submitted, that they delivered the required references — here two solo exhibitions and a genuine monograph? And have you composed your jury so that even the appearance of bias is avoided?
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 →