Municipal sports officer and account manager of the municipality's software supplier: Lubbeek may ban the double hat
The Council of State refuses to suspend the decision by which the municipality of Lubbeek ordered its sports officer Tom Harding to terminate his commercial agency with TicketGang — the firm to which the municipality had awarded its online registration system in 2018: the appearance of a conflict of interest and article 6 of the Public Procurement Act outweigh years of tolerance.
What happened?
Tom Harding has been the statutory sports officer of the municipality of Lubbeek since 1 May 2008 and, since 15 April 2012, bound to TicketGang — a provider of online registration platforms for leisure activities — through a commercial agency agreement; the firm's website lists him as its sole account manager, remunerated with a fixed amount per contract brought in plus commissions. In 2014 TicketGang bid for the municipal contract for an online registration system, but it went to Accompan.E. When that firm ceased its activity, the contract was awarded to TicketGang on 22 October 2018. At the end of 2018 a staff member discovered Harding's double role ‘by chance’, via TicketGang's website. The Agency for Home Affairs advised on 14 December 2018 that it should be assessed concretely whether a conflict of interest, or the impression of one, existed; the withdrawal of the award was put on the college's agenda of 7 January 2019, but taken off again untreated. The matter lay dormant for years, until corona forced the municipality in early 2022 to consider extending the system with a room-booking module — a considerable extra cost possibly requiring a new award procedure, in which TicketGang would evidently be involved. After a hearing on 11 April 2022, the college decided on 14 April 2022 that Harding had to cease all secondary activity for TicketGang and terminate his agency agreement, with a transitional period of at most six months. Harding sought suspension: the measure was said to be a disguised disciplinary sanction, disproportionate, and contrary to legitimate expectations after years of tolerance. The Council of State did not follow him: as head of the sports department he directly uses TicketGang's services and is normally involved in the performance of the contract and in future contracts, while being paid by that same firm — which prima facie compromises his independence, is problematic in the light of article 6 of the Public Procurement Act, and, as colleagues' statements showed, burdens the proper functioning of the department. Nor did the years of inaction save him: the new facts of 2022 allowed the municipality lawfully to revise its passivity. No serious plea, hence dismissal of the action.
Why does this matter?
Judgments on article 6 of the Public Procurement Act are rare, and this one gives the provision teeth. The Council of State accepts that the duty to prevent conflicts of interest applies not only at the award stage but also during performance and with a view to future contracts — and that it can oblige an authority to intervene in its own workforce. Strikingly, proven partiality was not needed: the appearance of a conflict sufficed, together with the finding that colleagues could hardly judge impartially a firm whose interests touched those of their head of department. Equally important is what the judgment says about tolerance: that the municipality had known about the double hat since late 2018 and did nothing — the withdrawal of the award even briefly appeared on the agenda — does not prevent new facts, here the imminent extension with a room-booking module, from justifying a fresh balancing of interests. Legitimate expectations are no perpetual safe-conduct. For procurement practice this is a double warning: a civil servant with commercial ties to a supplier of his authority lives on borrowed time; and an authority that lets such a situation fester can — and sometimes must — still intervene once a new award comes into view.
The lesson
For contracting authorities: take article 6 of the Public Procurement Act seriously before a file derails. At every award and every contract extension, screen whether the staff involved have financial or personal ties to candidates, and document the balancing of interests as Lubbeek did: a hearing, reasons, an examination of alternatives (transfer, arrangements) and a transitional period to soften the impact — precisely that care carried the decision through review. Do not let a known problem linger for years: it ended well here, but the 2019 agenda item on withdrawing the award, removed untreated, could have ended differently. For companies working with commercial agents: realise that an agent who is also a civil servant with a client authority is a risk to your contracts themselves — a rejected competitor may use it to challenge the regularity of the award. And for civil servants with a side job: transparency about your activity does not protect you once the activity itself becomes incompatible with your office.
Ask yourself
As a contracting authority, do you know of all your key staff whether they have financial ties to bidders or suppliers, including through agency agreements or commissions? Do you have a procedure to identify and resolve such conflicts, as article 6 of the Public Procurement Act requires — and do you apply it before extending a contract or putting it back on the market? When taking a far-reaching measure, do you document the balancing of interests, the alternatives examined and the transitional arrangements? And as a bidder: do you check whether persons sitting on both sides of the table are involved with your competitors — and what that means for the regularity of the procedure?
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 →