The consultant Contraste Europe seconded to RESA helped score the tenders — including Contraste Europe's own: award of the IT lots suspended
RESA awarded the cloud and middleware lots of its 15-million-euro server contract to Contraste Europe while an external consultant whom that same Contraste Europe had seconded to RESA through a purchasing body (at 790 euros a day) sat on the evaluation team and helped score all bidders' tenders on a sub-criterion worth 15 points out of 100; the Council of State saw in that, prima facie, a conflict of interest within the meaning of article 6 of the Act of 17 June 2016 that breached equal treatment in the evaluation, and suspended the award of lots 1 and 2 at the request of N.R.B. — while rejecting the complaint that Contraste Europe's earlier strategic study had distorted competition.
What happened?
RESA Innovation et Technologie NV, acting for the Liège grid operator RESA NV, ran a 60-month services contract for the management and hosting of RESA's servers and IT infrastructure, by competitive procedure with negotiation in the utilities sectors, estimated at 15,000,000 euros excluding VAT and divided into three lots: cloud solutions (11,000,000 euros), managed services for middleware (1,750,000 euros) and private data centres (2,250,000 euros). The notice was published on 22 October 2020; seven candidates were selected on 10 February 2021, and on 7 May 2021 N.R.B., Contraste Europe, Newin and a consortium around Uptime ICT and Cronos submitted tenders for lots 1 and 2 (the consortium was rejected for substantial irregularity). The evaluation ran in two phases: a technical evaluation team scored the tenders after an oral defence, after which only the two best-ranked bidders per lot were admitted to price negotiations and a BAFO. A first award of 25 August 2021 was withdrawn on 6 October 2021 after actions by N.R.B. and Newin; by a separate decision of the same day the board, on the basis of a new report of 29 September 2021, awarded lots 1 and 2 to Contraste Europe and lot 3 to Proximus. N.R.B., second for lots 1 and 2, filed two extreme-urgency applications on 22 October 2021, one per lot, each against the award to Contraste Europe and against the implicit refusal to award the lot to itself. The Council joined the cases. Insofar as the applications were directed against that implicit refusal, it held them prima facie inadmissible: N.R.B. did produce its own recalculation placing it first, but did not show that RESA, even accepting the alleged errors, had no choice but to award it the lots. The fourth plea turned on two complaints. The first: before the contract, Contraste Europe had supplied, through the purchasing body I-City, a consultant for a study on RESA's 'overall hosting strategy' — the merits of private versus public cloud, precisely the subject of lot 1 — and thus enjoyed an information advantage. The Council did not follow this. The award decision contained a 'transparency report' describing the previous assignments of N.R.B. (an inventory of the IT infrastructure in 2019), Contraste Europe and Newin; the specifications themselves set out the hybrid cloud strategy in detail (private cloud plus Azure and AWS as hyperscale platforms, supplemented by physical servers), with a needs matrix in annex 6, and all bidders had been able to ask questions, receive answers and present their tenders orally. RESA had thus taken the appropriate measures required by article 52 of the Act of 17 June 2016; N.R.B. moreover did not identify what 'additional information' Contraste Europe would have had, let alone how it would have helped on items QPM-014 (RACI matrix) and QSM-011 (antivirus) where N.R.B. scored lower. The second complaint did succeed. The electronic invitation to the oral defence showed that a certain F.G., with an email address @contractor.resa.be, was acting on RESA's side. RESA explained that F.G. is a freelancer with his own company (Procsima), that he had been proposed as sole candidate through a framework agreement of the purchasing body — of which Contraste Europe had won lot 19 'Lead Senior for IT governance' — and that RESA had appointed him on 20 November 2019 at 790 euros a day for one year, renewable, estimated at 316,000 euros. RESA also confirmed that F.G., within the evaluation team, had helped assess all tenders on sub-criterion QSM (quality of service delivery in operation, 15 out of 100), together with an internal staff member who validated all scores, and that he had no access to the prices. According to RESA, F.G. had no interest in any particular outcome: he had also worked for Computerland (a subsidiary of N.R.B.) and for Nethys/WIN. The Council held otherwise. Even on RESA's reading, F.G. was the consultant Contraste Europe made available to RESA, including to assist it in this award procedure; RESA paid Contraste Europe 790 euros a day and Contraste Europe in turn paid F.G. That is a business relationship generating a 'direct or indirect financial or economic interest' that 'could be perceived as compromising his impartiality or independence', within the meaning of article 6, § 1, second paragraph. That F.G. had also worked for other bidders does not guarantee his independence. And his involvement could influence the outcome: QSM weighed 15 points out of 100, while only a few points, even tenths of points, separated the first two tenders. F.G. should have recused himself and RESA should have prevented the conflict — all the more so since, in its own transparency report, it acknowledged the link between Contraste Europe and 'its' consultant, making it contradictory to let that same consultant evaluate the tenders without any reservation. To that extent the plea was serious; RESA identified no disadvantage outweighing a suspension. The Council suspended the award of lots 1 and 2 to Contraste Europe, ordered immediate execution, kept the documents confidential and reserved the costs. RESA withdrew the award on 2 February 2022 (see nos. 255.117 and 255.118).
Why does this matter?
The judgment puts its finger on a conflict of interest that is anything but exotic in the IT sector: contracting authorities hire external expertise through framework agreements and purchasing bodies, and those experts often come from companies that themselves bid for the contracts. RESA had a story for it — the man is self-employed, works for everyone, did not see the prices, an internal colleague validated everything — and the auditor accepted that story. The Council did not, and its reasoning is sharp: the question is not whether the consultant was actually biased, but whether his position 'could be perceived as compromising his impartiality'. Someone who is invoiced to the authority by bidder X and then helps score X's tender is in that position, full stop. That he assessed only 15 of the 100 points saves nothing when tenths of points decide the ranking. Equally instructive is what the Council did not accept. Contraste Europe's prior strategic study gave no unlawful head start, because RESA did exactly what article 52 requires: share all useful information in the specifications and annexes, answer questions, give adequate time limits, and document all of it in a transparency report in the award decision. Whoever claims a competitor had 'too much information' must say which and why it matters; N.R.B. could not. The contrast between the two complaints is the heart of the judgment: prior involvement can be neutralised by sharing information, a conflict of interest on the jury cannot. Finally, a procedural lesson the Council repeats here: an action against the implicit refusal to award the contract to yourself requires you to show that the authority had no other choice — your own recalculation placing you first does not suffice.
The lesson
For contracting authorities: before assembling an evaluation team, check who pays each member. An external consultant seconded by a bidder through a framework agreement — even if self-employed and even if an internal colleague validates his scores — may not help evaluate tenders once that bidder competes. Act on your own transparency report: if you acknowledge there the link between a bidder and a consultant, you must behave accordingly. Prior involvement of a bidder in the preparation, by contrast, is manageable: share all useful information in the specifications, answer questions collectively, allow enough time and document it. For bidders: look at the invitations and attendance at the oral defence — a 'contractor' email address on the authority's side was the trail to a serious plea here. Substantiate an information-advantage complaint concretely, with the documents and the scores it would have affected. And if, besides the award, you also challenge the implicit refusal to award you the contract, know that your own recalculation is not enough.
Ask yourself
Do you know, for every member of your evaluation team, internal or external, through which contract and which company they are paid, and whether that company is bidding? Have you described bidders' prior assignments in a transparency report and shared the useful information from them with all bidders? As a bidder: have you checked who sat on the authority's side at the oral defence, and can you tie a competitor's alleged information advantage to concrete documents and scores? And do you realise that the appearance of bias suffices — not proof of it — to have an award suspended?
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 →