Appeal rejected: substantial irregularity confirmed for inconsistency between 15 announced FTEs and 0.5 FTE justified in pricing — GDPR pleas inadmissible for lack of interest
Venturis' annulment appeal against VIVAQUA's decision to exclude its offer for the recovery of unpaid water bills is rejected — the inconsistency between the 15 full-time equivalents announced as specifically dedicated and the 0.5 FTE justified in pricing validly constitutes a substantial irregularity, and the pleas challenging the modification of the specifications regarding data transfer to Tunisia (GDPR) are inadmissible for lack of interest.
What happened?
VIVAQUA launched a negotiated procedure (special sectors) for legal services covering amicable and judicial recovery of unpaid water bills in the Brussels-Capital Region. The specifications included detailed GDPR requirements for personal data transfer outside the EU. In March 2019, an erratum expanded transfer possibilities to include article 46 GDPR guarantees, but in May 2019 VIVAQUA reversed this, allowing only transfers to countries with an adequacy decision. Venturis, which has a Tunisian subsidiary, submitted an offer claiming 15 FTEs specifically dedicated to the amicable phase at a price far below the average. Price verification revealed the personnel cost covered only 0.5 FTE. VIVAQUA declared the offer substantially irregular on two grounds: GDPR non-compliance and FTE inconsistency. The Council of State confirmed the inconsistency constitutes a substantial irregularity preventing offer comparison. The pleas regarding the GDPR modification were inadmissible: since the offer had to be excluded anyway due to the FTE irregularity, Venturis was not prejudiced by the alleged GDPR violations. The preliminary question to the CJEU was not referred.
Why does this matter?
This ruling clarifies that FTE is a measure of actual working time, not the number of available persons. Inconsistency between announced FTEs and price justification constitutes a substantial irregularity. The ruling also confirms that a tenderer whose offer is validly excluded for one irregularity lacks interest to challenge a second irregularity. The GDPR question (whether a contracting authority can restrict legal bases for data transfer to third countries) remains unanswered.
The lesson
As tenderer: ensure the number of FTEs announced is consistent with your price justification. Clarify the distinction between available personnel and effective working time dedicated to the contract. As contracting authority: formulate GDPR requirements clearly from the outset and avoid modifying them during negotiations.
Ask yourself
Is the FTE count I announced consistent with my price justification? Did I clearly distinguish between available persons and working time effectively dedicated to the contract?
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 →