Framework agreement for cable and catenary works on Antwerp tram network: annulment for conflict of interest – designer Tractebel as sister company of tenderer Fabricom (both Engie subsidiaries) with three of six evaluation committee members
The Council of State annuls VVM De Lijn's award decision for a framework agreement for cable and catenary works on the Antwerp tram network, because De Lijn failed in its active duty to investigate conflicts of interest: the designer Tractebel, which had drafted the specifications and was represented by three of six evaluation committee members, is a sister company of Fabricom — a partner in the winning tenderer tm Antwerpen Boven — as both are (quasi 100%) subsidiaries of Engie with shared directors, which constitutes at minimum an appearance of partiality.
What happened?
De Lijn tendered a framework agreement for cable and catenary works on the Antwerp tram network via a negotiated procedure with prior call for competition (special sectors). Tractebel, entrusted with the design mission since 2011, was represented by three of six evaluation committee members. Two candidates submitted offers: EQOS Energie Deutschland and tm Antwerpen Boven (Fabricom nv + Van den Berg nv). After four negotiation rounds, the contract was awarded to tm Antwerpen Boven (74.10 vs 72.00 points). The Council found that article 6(3) (absolute presumption) applies only to natural persons, not legal persons like Tractebel. However, article 6(1) was violated: Tractebel and Fabricom are both (quasi 100%) subsidiaries of Engie with three shared directors, constituting a structural bond creating at minimum an appearance of partiality. The appearance suffices — no proof of actual influence is required. De Lijn had not concretely investigated the conflict of interest nor taken specific measures for this contract. Decision annulled.
Why does this matter?
This ruling clarifies that the absolute presumption of conflict of interest (art. 6(3)) only applies to natural persons; that under art. 6(1), the appearance of partiality suffices without proof of actual influence; and that the contracting authority has an active duty of investigation that cannot be discharged by relying on the group's internal compliance measures.
The lesson
As a contracting authority: when the designer belongs to the same group as a tenderer, conduct a concrete investigation into the conflict of interest and take specific measures for the contract concerned. Do not rely on the group's internal measures. Motivate your decision on this point. As a tenderer: a structural bond (same group, shared directors) between the designer and a competitor is a serious ground for annulment.
Ask yourself
As a contracting authority: have I investigated structural links between the designer and tenderers? Is my decision motivated on the conflict of interest? Have I taken specific measures for this contract? As a tenderer: do the designer and a competitor belong to the same group?
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 →