Urgent suspension request by Aqualiner against award of water passenger transport De Waterbus Antwerp rejected — revolving door not proven — selection references via third-party capacity accepted — abnormally low price refuted after financial analysis
The Council of State rejected Aqualiner's urgent suspension request against the award decision by the Maritime Services and Coast agency (MDK) for 'De Waterbus' water passenger transport in and around Antwerp, ruling that the alleged revolving door was not proven (the person concerned worked in a different entity within the agency and the two-year term had expired), that the chosen tenderer lawfully relied on third-party capacity for selection references, and that the price was not abnormally low after financial analysis.
What happened?
The Maritime Services and Coast agency (MDK) tendered water passenger transport services 'De Waterbus' in Antwerp through a competitive procedure with negotiation. Two candidates were selected: the combination Brabo-XO and Aqualiner. After BAFO submission, Brabo-XO scored 88 points versus Aqualiner's 70.34. Aqualiner raised three grounds: (1) a revolving door — a former acting director of DAB Fleet (another entity within MDK) became CEO of Brabo; the Council found no sufficient link between his former duties and this specific contract, the two-year term had expired, and no mandatory exclusion provision existed in the tender documents; (2) selection references — Brabo-XO lawfully relied on third-party capacity (Rederij Flandria), 'comparable services' does not require identical scale, and market consultation showed limited interest justifying broader interpretation; (3) abnormally low price — financial analysis confirmed feasibility, the Inspector of Finance confirmed proximity to the estimate, and the price difference was explained by business model (ship takeover versus leasing).
Why does this matter?
This ruling refines the revolving door rules: not every personnel transfer creates a conflict of interest — a concrete link between former duties and the specific contract is required, the two-year term applies strictly, and distinctions between entities within the same agency matter. It confirms that third-party capacity for selection references is lawful and 'comparable' may be broadly interpreted. It illustrates how abnormally low price assessments work in practice.
The lesson
Document the concrete link between a person's former duties and the specific contract when alleging a revolving door. Check whether the two-year term has expired at BAFO submission. Verify whether tender documents contain a mandatory exclusion provision. Ensure proper commitment when relying on third-party capacity. Conduct financial analysis accounting for the tenderer's business model when assessing abnormally low prices.
Ask yourself
Revolving door: is there a concrete link between former duties and the specific contract? Has the two-year term expired? Do tender documents mandate this exclusion ground? Selection references: is third-party capacity supported by commitment? Are services 'comparable'? Abnormally low price: has financial analysis been conducted? Does it account for the business model?
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 →