Council of State - 253.677
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| Coouncil of State - 253.677 | |
|---|---|
 | |
| Court: | Coouncil of State (Belgium) |
| Jurisdiction: | Belgium |
| Relevant Law: | Article 9 GDPR Article 28 GDPR Article 46 GDPR |
| Decided: | 06.05.2022 |
| Published: | 01.06.2022 |
| Parties: | |
| National Case Number/Name: | 253.677 |
| European Case Law Identifier: | |
| Appeal from: | |
| Appeal to: | Unknown |
| Original Language(s): | French |
| Original Source: | Council of State (in French) |
| Initial Contributor: | n/a |
The Council of State suspended a decision to choose a US contractor in the context of a public procurement procedure on the ground that the public authority did not sufficiently examine whether the contractor was compliant with the requirements of the GDPR, in particular the provisions on transfers and the further processing by another company, Smart Analytics, based in Russia.
English Summary
Facts
VIVALIA, a public network of hopsitals, started a public tender to find a contractor to process patient data of hospitals for statistical purposes. The contract was assigned to 3M, a US company that was already in the news for transferring data to the US and Russia without appropriate safeguards. On this basis, a third party, which also took part in the public procurement procedure, challenged VIVALIA's decision.
Holding
The Council of State considered that, before concluding the public tender, VIVALIA should have analysed the extent to which 3M complied with the section of the GDPR on international transfers, as required by the public procurement specifications. Considering the lack of analysis of VIVALIA on this aspect, the Council of State suspended the decision to choose 3M as a contractor.
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English Machine Translation of the Decision
The decision below is a machine translation of the French original. Please refer to the French original for more details.
COUNCIL OF STATE, ADMINISTRATIVE LITIGATION DIVISION
THE PRESIDENT OF THE VI CHAMBER SITTING IN SUMMARY PROCEEDINGS
A R R E T
no 253.677 of 6 May 2022
A. 235.924/VI-22.254
At issue: the non-profit association CENTRE
INTERDISCIPLINARY BENCHMARKING CENTRE
ECONOMY AND HEALTH, abbreviated to CIBES,
having its registered office at
Mr Thomas CAMBIER, lawyer,
avenue Winston Churchill 253/40
1180 Brussels,
against :
the intermunicipal association VIVALIA,
with an address for service at
M Jean LAURENT and
Olivier LOUPPE, lawyers,
avenue Louise 250
1050 Brussels.
Applicant in intervention :
the limited liability company 3M BELGIUM,
with an address for service at
M Isabelle COOREMAN, lawyer,
avenue Charles Quint 586/9
1082 Brussels.
------------------------------------------------------------------------------------------------------
I. Purpose of the applications
By application lodged on 23 March 2022, the non-profit association
Interdisciplinary Centre for Health and Economic Benchmarking, in short CIBES,
requests the suspension, under the extreme urgency procedure, of the execution of :
"the decision of the other party :
- to declare its offer irregular and to reject it for the public service contract
relating to the subscription to a collective tool for analysis and feedback concerning
medical hospital activity, in its three lots;
- to award this contract to another bidder, namely 3M
BELGIUM ".
VIexturg - 22.254 - 1/30
By application lodged on 5 May 2022, the non-profit association
Centre interdisciplinaire de Benchmarking Économie et Santé, in short CIBES,
seeks the annulment of the above-mentioned decision.
II. Procedure
By order of 24 March 2022, the case was set down for hearing on
21 April 2022.
By an application lodged on 1 April 2022, the limited liability company
by application lodged on 1 April 2022, the limited liability company 3M Belgium requested to be admitted as an intervener.
The contribution and the fees referred to in Articles 66(6) and 70 of the General Rules of Procedure have been paid
70 of the General Rules of Procedure have been paid.
The opposing party filed a memorandum of observations and the file
administrative record.
me
M Florence Piret, State Councillor, Acting President, presented her
report.
M Noémie Cambier, Thomas Cambier and Jean-Marc Van Gyseghem,
es
lawyers, appearing for the applicant, M Jean Laurent and Charline
Servais, lawyers, appearing for the other party, and M eMaxim Lecomte, loco
M Isabelle Cooreman, lawyer, appearing for the applicant in intervention, have
were heard in their observations.
me
Muriel Vanderhelst, auditor at the Council of State, was heard in
her assent.
The provisions on the use of languages are applied,
in Title VI, Chapter II, of the Council of State Acts, coordinated on
12 January 1973.
III. Facts relevant to the examination of the application
According to the other party's account of the facts relevant to the examination
of the application for suspension are as follows:
VIexturg - 22.254 - 2/30
"1. on 26 January 2021, the Board of Directors of Vivalia decides to
to launch a public service contract relating to the subscription to a collective tool
analysis and feedback tool for hospital activity. [...]
The contract is launched by direct negotiated procedure with prior publication and
is published on 28 January 2021. [...]
2. On 26 February, the company 3M submitted a tender. [...]
On 8 March 2021, Mr [W.] submitted a bid on behalf of the
applicant. [...]
On 9 March 2021, the opposing party opened the tenders. [...]
3. On 29 March 2021, VIVALIA wrote to CIBES:
"Hello Mrs [C.],
I am taking the liberty of returning to you, in the context of the contract mentioned in the subject,
following the submission of your offer.
In the context of the administrative analysis of the offers, I note that the electronic submission report was signed by Mr. [C.]
was signed by Mr [W.]. However, I do not have
proof of his authority to commit your association in the context of this contract. In
indeed, the document transmitted does not concern Mr [W.].
May I ask you to kindly send me this document by
10 April 2021 at the latest?
Thank you in advance.
4. On 22 April 2021, VIVALIA wrote to CIBES:
"Mrs [C.],
I am taking the liberty of coming back to you in the context of the contract referred to above
because, unless I am mistaken, you have not made a reservation following my previous e-mail
of 29 March last.
In the context of the administrative analysis of the tenders, I note that the electronic filing report was signed by Mr
was signed by Mr [W.]. However, I do not have
proof of his authority to commit your association in the context of this contract. In
indeed, the document transmitted does not concern Mr [W.].
May I ask you to send me this document as soon as possible?
as soon as possible".
5. On 27 April 2021, VIVALIA wrote to CIBES:
"Hello Mrs [C.],
I am coming back to you in the context of the contract mentioned above.
Following the presentation of your offer at Vivalia's premises on Thursday 22 April, may I ask you to kindly ask you to
april, may I ask you to kindly send me the slides used during the presentation?
used during the presentation?
I would also like to remind you of my emails of 29 March and 22 April
concerning the document proving Mr [W.]'s authority to sign the
report on the electronic submission of the CIBES offer.
I thank you in advance for your return as soon as possible.
6. On 27 April 2021, CIBES replied:
"[W.] was technically the only one on the team who was able to send the document
as you required.
w.] was authorised to send the document and, as President of CIBES, I certify that he was authorised to do so
Is this enough of a guarantee for you?
7. On the same day, VIVALIA replied as follows:
"I thank you for your reply.
However, it is far from sufficient.
Indeed, the fact that only Mr [W.] was able to send the offer on the electronic platform and the fact that you
electronic platform and the fact that you state in your e-mail that he was entitled to do so is not
entitled to do so is not a sufficient justification.
VIexturg - 22.254 - 3/30
In accordance with Article 43 of the Royal Decree of 18 April 2017 on the
public procurement in the classical sectors, the electronic filing report must be
electronic filing report must be covered by a qualified electronic signature, i.e. it must be
it must be signed by the person(s) competent or authorised to
to commit CIBES in the framework of this public contract.
It is therefore necessary that Mr [W.] is covered by a mandate and that
you provide me with the official proof of this mandate".
8. On 5 May 2021, VIVALIA wrote to CIBES:
"Hello Mrs [C.],
I am coming back to you in the context of the contract referred to above because you have not
you have not followed up on my request, following our exchange of emails on 27 April
april 27.
May I ask you to send me the proof that Mr [W.] was authorised, in the context of the contract referred to in the subject line, to carry out the work for which he is responsible
[W.] was authorised, on the basis of an official mandate, to submit the CIBES tender
on the electronic E-Notification platform and to sign the electronic filing report, in accordance with
in accordance with Article 43 of the Royal Decree of 18 April 2017 on the
2017 on the award of public contracts in the traditional sectors.
I invite you to send me this document within twelve days, namely
by 21 May 2021 at the latest.
I would like to advise you that without the proof of this mandate, we will be forced to
erBES's offer to be substantially irregular on the basis of Article 76(1) of the
on the basis of Article 76, § 1 , 2° of the Royal Decree of 18 April 2017 on the
awarding public contracts in the classical sectors".
9. On 5 May 2021, VIVALIA wrote to CIBES:
"Ms [C.],
I am coming back to you concerning the technical analysis of your offer in the
The technical part of the specifications, in its point 5.1 (page 26) states:
for organisational reasons, Vivalia would like the groupage service to be carried out by the
service to be carried out by the successful bidder. If at the opening of the tenders the
the tenderer is not able to provide the groupage service, he must undertake to
must undertake to offer it. It will have a period of 2 months following the award of the contract to
the award of the contract to put itself in order and to be able to provide
data based on the grouping system used by Public Health'.
On examination of your tender, we understand that you do not offer the
that you do not offer the grouping service and that you do not undertake to offer it
within two months of the award of the contract.
Consequently, I would be grateful if you could confirm that CIBES, through its offer, does not undertake to
its offer does not undertake to offer the groupage service or to set it up within two months of
to set up the groupage service within two months of the possible award of the contract to
CIBES and that consequently this service is not included in the amount of the bids for the various lots submitted
for the various lots submitted.
I thank you in advance for your prompt reply.
10. On the same date, CIBES replies:
"Dear Madam,
On reading the offer, it appeared to me that you were imposing the
and that if we were chosen we would have two months to acquire the group
group. However, as none of the 38 sites in our sample
however, as none of the 38 sites in our sample has this requirement, we thought it was normal to wait to find out if we were
chosen to acquire it.
We contacted 3M who would provide us with the unit for 18,000 euros per year
year.
Kind regards
[C.] "
11. On 6 May 2021, VIVALIA writes to CIBES:
"Good morning,
VIexturg - 22.254 - 4/30
I take note of the fact that the grouper is not currently included in your offer and that 3M would
and that 3M would provide you with the grouper for 18,000€ excluding VAT/year.
The specifications stated the following:
For organisational reasons Vivalia would like the groupage service to be carried out by the
service to be carried out by the successful bidder. If at the opening of the offers the
the tenderer is not able to provide the groupage service, he must undertake to
must undertake to offer it. It will have a period of 2 months following the award of the contract to
the award of the contract to put itself in order and to be able to provide the data on the basis of the
data on the basis of the grouping system used by Public Health.
propose the grouping within 2 months of the award of the contract. This
this means that the commitment to do so must already be present in the tender
Therefore, I invite you to provide me with an adapted financial offer
taking into account this amount for each lot. Indeed, it is
to be in possession of similar offers in order to be able to compare them
compare them.
I would therefore be grateful if you could confirm in black and white that CIBES
that CIBES is committed to proposing grouping by integrating it into your financial
proposal and that it will be operational within two months of the award of the contract
of the contract if it is awarded to your company.
Furthermore, I remind you of my request to have the official mandate of
Mr [W.] proving his authority to sign the electronic filing report
electronic filing report.
Thank you in advance for your return by 18 May 2021 at the latest
at the latest".
12. On 6 May 2021, CIBES replies:
"I confirm to you, insofar as necessary, that the offer is indeed signed by
i, as Chairman of the Board of Directors, so that there is no doubt about the
there is no doubt about the commitment made by CIBES (cf. art. 27 of the CIBES statutes)
of CIBES)
As for the submission of this offer, I also confirm that I have instructed
Mr. [W.] to do so, which has no impact on the company's commitment to the valid offer
company's commitment to the validly signed offer. This could therefore not
this does not affect the company's commitment to the validly signed offer. This could not therefore constitute an irregularity that could lead to the offer being rejected. In this regard, the case law of the
in this respect, the case law of the Council of State on the subject of signature is based on
the uncertainty about the tenderer's commitment to admit
(C.E., n°223.636 of 29 May 2013).
The judgment of the EC n°24.676 concerns a case where the tender is signed and submitted by a person who
by a person who does not have the power of representation and the examination of the
of the Council of State focuses on the signature of the bid and not on the filing report
what is important is that, when the bid is submitted, the person who signed the bid and the
who signed the bid and the inventory was entitled, by statute or by proxy, to
to validly represent the tenderer in judicial and extrajudicial acts and to
judicial and extrajudicial acts and to bind the tenderer for the total amount of the
the total amount of the tender'. In addition, this judgment emphasises that the contracting authority has the right
authority has the right 'without being obliged' to reject the tender.
I am surprised that the submission of our tender on the electronic platform suddenly raises so many questions from the
i am surprised that the submission of our offer on the electronic platform suddenly raises so many questions from VIVALIA, whereas for the
i am surprised that the submission of our offer on the electronic platform suddenly raises so many questions from VIVALIA, while the team member who submitted the offer did so without the slightest reaction
reaction.
I am surprised by this, especially as it is part of a historical context that could suggest that VIVALIA is not a good fit for the company
that VIVALIA does not want to collaborate with VIVILIA ?
VIVILIA ? to the benefit of the company 3M, which is in place following a
appointment that was made in violation of the regulations on public contracts
regulations.
Best regards".
13. On 9 May 2021, VIVALIA writes to CIBES:
VIexturg - 22.254 - 5/30
"Hello Mrs [C.],
I am coming back to you in the context of the contract mentioned above because you have not
my request, following our exchange of emails on 27 April last
april 27.
May I ask you to send me proof that Mr [W.] was authorised, in the context of the contract referred to above, to carry out the work for which he is responsible
[W.] was authorised, on the basis of an official mandate, to submit the CIBES tender
on the electronic E-Notification platform and to sign the electronic filing report, in accordance with
in accordance with Article 43 of the Royal Decree of 18 April 2017 on the
2017 on the award of public contracts in the traditional sectors.
I invite you to send me this document within twelve days, namely
by 21 May 2021 at the latest.
I would like to advise you that without the proof of this mandate, we will be forced to
to consider CerES' offer substantially irregular on the basis of Article 76(1) of the
article 76, § 1, 2° of the Royal Decree of 18 April 2017 on the award of public
awarding public contracts in the classical sectors".
14. On 12 May 2021, CIBES replies:
"Hello Mrs [F.],
We do not understand the meaning of adding the grouping to the 3 lots.
The grouper is used to group the RHM data. It can be useful to group
it may be useful to group them relatively quickly as the coding proceeds.
It is therefore essential for batch 1 justified days which are based directly and solely on the RHM and it is
and only on the RHM and it seems relevant to us to add the grouper to
batch 1.
We do not see the point of adding the group to the other two batches.
Indeed, if we obtain lot 1 the Grouper will be attached to the offer and we will
group your RHM data and send it to you so that you can use it for the
you can use it for the other lots
lot1 and you can send us the grouped data for the other two lots
batches.
We look forward to a clear answer from you".
15. On 17 May 2021, VIVALIA wrote to CIBES:
"Hello,
I take note of the fact that the grouping is not currently included in your offer and that 3M would
and that 3M would provide you with the grouper for 18,000 € excluding VAT / year.
The specifications stated the following:
For organisational reasons Vivalia would like the groupage service to be carried out by the
service to be carried out by the successful bidder.
If at the opening of the tenders the tenderer is not able to perform the groupage service
the groupage service, it must undertake to offer it. He will have a period of
of 2 months following the award of the contract to put itself in order and to be able to
and be able to provide the data on the basis of the grouping system used by the
Public Health.
The terms of reference therefore stipulate that the tenderer must undertake to
offer grouping within 2 months of the award of the contract. This
means that the commitment to do so must already be present in the tender
Consequently, I invite you to send me an adapted financial offer
taking into account this amount for each lot. Indeed, it is
to be in possession of similar offers in order to be able to compare them
compare them.
I would therefore be grateful if you could confirm in black and white that CIBES
that CIBES is committed to proposing grouping by integrating it into your financial
proposal and that it will be operational within two months of the award of the contract
of the contract if it is awarded to your company.
Furthermore, I remind you of my request to have the official mandate of
Mr [W.] proving his authority to sign the electronic filing report
electronic filing report.
VIexturg - 22.254 - 6/30
I thank you in advance for your return by 18 May 2021 at the latest
may 18, 2021 at the latest.
Yours faithfully.
Yours sincerely".
16. On 18 May 2021, the applicant sent a revised offer to VIVALIA
and wrote:
"As explained during our discussions prior to the submission of tenders, it was possible to split the
possible to split the contract and VIVALIA's choice to link this contract to a
since only 3M is able to offer this service. However, this is precisely
the service provider currently in place and likely to be the only competitor
cIBES in the award of this contract.
This choice of VIVALIA obliges CIBES, in order to be able to participate in this contract, to
to request the services of its competitor and to be, de facto, dependent on it.
Confirming its desire to participate in this market, CIBES took steps
to its competitor in order to benefit from its groupage service if the contract is awarded
its groupage service. 3M submitted a bid for its groupage service, which
which already constitutes an obstacle to competition since CIBES is financially
financially penalised.
Moreover, 3M has not made a firm commitment to offer this service
service, as it maintains a condition linked to the completion of an Integrity Assessment procedure
integrity Assessment procedure, about which 3M says CIBES has nothing to do
to do.
Subject to this condition, which is totally beyond our control, we
we undertake to provide this service to VIVALIA as requested.
It goes without saying that CIBES could not, during the awarding or the execution of the contract, be subject to the
the execution of the contract, suffer the consequences of the conditions set by the
3M.
If VIVALIA intends to obtain the lifting of this condition set by 3M, it would seem useful to invite 3M to
3M to lift the condition imposed on its competitor
competitor.
In accordance with your request, you will find attached the adapted financial offer
for each lot, including the price requested by CIBES to provide the
provide the grouping service enabling stays to be associated with their APRs
DRGs in the framework of the benchmarkings presented in the three lots of the
vivalia's public contract".
17. On 29 June 2021, the Deputy Director General of VIVALIA adopted the
award report and transmits it to the Board of Directors. [...]
18. On 13 July 2021, the Board of Directors of VIVALIA decides
[...] :
" [...]
Whereas the offer of the firm CIBES should be rejected on the grounds of
substantial irregularity,
In view of the fact that the offer submitted by CIBES is signed by hand by Mrs [C.]
in view of the fact that the offer submitted by CIBES is signed in manuscript by Mrs [C.], Chairman of the Board of Directors of the company
company,
electronically and filed by Mr [W.], whose name does not appear in the articles of association of CIBES
articles of association of the company CIBES,
Considering that articles 41 to 44 of the Royal Decree of 18 April 2017 on
the award of public contracts in the traditional sectors require the qualified
qualified electronic signature of the tender in the context of a direct negotiated procedure
procedure with publication,
In view of the fact that a handwritten signature of a tender is therefore not valid; that in any event, it is clear from the case law that the
that, in any event, it is clear from the case law of the Council of State that a
that, in any case, it is clear from the case law of the Council of State that a scanned handwritten signature of a tender is not valid (judgment no. 141.559 of 3 March
VIexturg - 22.254 - 7/30
2005, judgment no. 230.176 of 12 February 2015 and judgment no. 223.636 of 29 May 2013)
;
Considering that the handwritten signature of the offer by Mrs [C.] is therefore not valid and cannot
given that the handwritten signature of the offer by Mrs [C.] is therefore not valid and cannot commit the company CIBES to the performance of the contract,
Considering that the only acceptable signature is that of Mr [W.]; That this person is not, however, competent to sign the tender
that this person is not, however, competent to commit the company CIBES,
That in accordance with Article 44 of the aforementioned Royal Decree of 18 April 2017, in the event that the tender is
that, in accordance with Article 44 of the aforementioned Royal Decree of 18 April 2017, in the event that the tender is signed by a proxy, the latter shall attach the
the electronic authentic or private deed granting him his powers or
a scanned copy of the power of attorney; That the specifications particularly insisted on this
that the tender specifications particularly insisted on this requirement in the present case,
Considering that the offer submitted by CIBES does not contain any document
given that the tender submitted by CIBES does not contain any document (mandate, power of attorney, or other) of such a nature as to demonstrate that Mr [W.] was
competent to commit the company CIBES,
Given that, on the contrary, the acts of the ASBL as published in the Moniteur belge
on the contrary, the acts of the ASBL as published in the Moniteur belge inform that the General Assembly of the ASBL decided, on 20 March
2015, to entrust the day-to-day management of the ASBL to Mrs [C.] (MB of 7 May 2015)
may 2015); that no other decision concerning the delegations was published after that
no other decision concerning the delegations was published after this one, so that it should be noted that Mr [W.] was
was incompetent to affix his qualified electronic signature at the time of the submission of the
submission of the tender,
Considering that, pursuant to Article 76 of the aforementioned Royal Decree of 18 April 2017
considering that, pursuant to Article 76 of the aforementioned Royal Decree of 18 April 2017, a bid that is not signed or not validly signed is affected by a substantial irregularity
whereas, pursuant to Article 76 of the aforementioned Royal Decree of 18 April 2017, a tender that is not signed or not validly signed is affected by a substantial irregularity
in this case, the Contracting Authority is obliged to declare the tender irregular,
Considering that the lack of a valid signature is, moreover, of such a nature as to render
considering that the lack of a valid signature is, moreover, of such a nature as to make the tenderer's commitment to perform the contract uncertain,
Considering that the tender submitted by the company CIBES should therefore be rejected,
[...]
1. Not to award lot 2 (Reference amounts, low-cost clusters, etc.)
clusters - Pharmacy Packages - Global financing by group of pathologies) due to a revision of the
pathology group) due to a revision of the needs of the Contracting Authority and to
re-launch a contract via a new procedure;
2. To award this contract as follows
Firm Cost excluding VAT Cost including VAT
Lot 2 3/ 84.8/9.56 102.6/2.07
Lot 3 3M 97,889.46 118,446.25
Total cost 3M 182,749.02 221,126.31
".
19. On 26 August 2021, the opposing party notified the applicant company of the reasons why its tender had been found to be irregular, taken from the decision of the
reasons why its tender was considered irregular, taken from the reasoned award decision
from the reasoned award decision. [...]
20. On 10 September 2021, the applicant lodged an application for an extremely urgent stay of execution with
urgent suspension of the award decision of 13 July 2021 (procedure G/A 234.525/VI-22.147) before the Council
13 July 2021 (procedure G/A 234.525/VI-22.147).
In a judgment no. 252.355 of 8 December 2021, Your Council suspended the
decision on the grounds that "the contracting authority could have considered that the applicant's
the applicant's tender was irregular as it was not signed in accordance with the
article 43(1). It also follows from Article 76(1)(4) of the Act of Accession,
4, of the Royal Decree of 18 April 2017 that failure to comply with the provisions of
article 43(1) of that decree constitutes a substantial irregularity. The opposing party was therefore right
the other party was right to describe the irregularity in question as substantial" and that the
and that the contracting authority was not obliged to reject the tender on this ground
the contracting authority was not obliged to reject the tender on this ground, since it had the option of allowing the irregularity to be rectified,
article 76(5) does not exclude certain irregularities from the possibility of
from the possibility of regularisation that it establishes".
VIexturg - 22.254 - 8/30
He concluded that:
"It is clear from Article 76(5) that the contracting authority has a discretionary
discretionary power to decide whether or not to have recourse to the possibility of
regularise an irregularity. It is not necessary here to determine whether and to what extent the
whether and to what extent the choice not to make use of this option must be
formal reasoning in the decision, it is in any case necessary that the authority
the authority has exercised that discretion. This is not the case in this instance
case".
21. On 21 December 2021, the Board of Directors of VIVALIA
decided to withdraw the decision of the Board of Directors of 13 July 2021
13 July 2021. [...]
On the same date, the Board of Directors of VIVALIA decides [...] :
"1. not to award lot 2 (Reference amounts, Low variability clusters - Pharmacy
1. not to award lot 2 (Reference amounts, Low variability clusters - Pharmacy packages - Global funding by disease group) due to a revision of the
(Reference amounts, Low Variability Clusters - Pharmacy Packages - Global Financing by pathology group) due to a revision of the Contracting Authority's needs and to
re-launch a contract via a new procedure;
2. To reject the tender of the company CIBES affected by a substantial irregularity
when this irregularity is such as to make the commitment of the tenderer uncertain
tenderer;
3. To award the present contract as follows
Firm Cost excluding VAT Cost including VAT
Lot 1 3M 84.859,56 102.682,07
Lot 2 / / /
Lot 3 3M 97,889.46 118,446.25
Total cost 3M 182,749.02 221,126.31
".
This is the contested decision.
22. On 11 February 2022, the supervisory authority sent a letter to the other party informing it that the
party informing it that the decision of the Board of Directors of 21 December 2021 did not require any
december 2021 does not require any guardianship measures and has become fully
enforceable. [...]
23. On 24 February 2022, the other party notified the first decision of
21 December 2021 to both bidders. [...]
On 8 March 2022, the opposing party notified both bidders of the second decision of 21
on 8 March 2022, the other party notified both bidders of the second decision of 21 December 2021 by e-mail and registered mail.
IV. Intervention
By an application lodged on 1 April 2022, SRL 3M Belgium
requests to intervene in the summary proceedings of extreme urgency.
As the beneficiary of the disputed contract, it has a sufficient interest to intervene in the
sufficient interest to intervene in the present proceedings. It is necessary to
be allowed.
V. Admissibility
V.1 Submissions of the parties
VIexturg - 22.254 - 9/30
The opposing party submits that the action can only relate to the decision to
the decision to award lots 1 and 3 of the contract to SRL 3M Belgium, since it has
the decision not to award lot 2 of that contract. It concludes that "the application is
[...] inadmissible insofar as it seeks the suspension of the decision not to
awarding lot 2". It added that since the contract at issue did not meet the threshold for European
threshold for European advertising, it was not obliged to respect the waiting period before concluding the
before concluding the contract with the successful tenderer and that by
the contract was concluded with SRL 3M Belgium on 8 March 2022, when that company was notified of the
the notification to this company of the award decision. It concludes that there is no
justifies the extreme urgency of the decision since a possible suspension of the
the execution of the award decision would have no effect on the contract concluded
with SRL 3M Belgium.
The applicant replied at the hearing that the Council of State had consistently accepted the admissibility of a request for suspension submitted in the context of a court case
Council of State admits the admissibility of an application for suspension lodged in extreme
against the decision to award a public contract, even where the decision is
the contract has already been concluded.
V.2. Assessment of the Council of State
Article 15 of the law of 17 June 2013 on the motivation, information
information and review procedures relating to public contracts, certain works, supply and
works, supply and service contracts and concessions provides that
the review body may order the suspension of the execution of decisions taken
authorities under the same conditions as those referred to in
the same conditions as those referred to in Article 14 of the same law, i.e. provided, on the one hand, that the review is
by a person who has, or has had, an interest in obtaining the contract, and
the second, that the alleged violations have harmed, or may harm, the requesting party.
These provisions are made applicable to contracts below the European advertising threshold by
threshold by Article 31 of the same law.
The fact that the contract has already been concluded for lots 1 and 3 does not
the fact that the contract has already been concluded for lots 1 and 3 does not deprive the applicant of its interest
decision to award the contract, pursuant to Article 15 of the Law of 17 June 2013
of the aforementioned Law of 17 June 2013, since, in accordance with that provision, it fulfils the same
the same conditions as those that allow it to request the annulment of this
decision.
The objection to the inadmissibility of the action, based on the conclusion of the contract
contract and, consequently, the alleged lack of extreme urgency to decide, cannot be
cannot be accepted.
VIexturg - 22.254 - 10/30
For the rest, it is clear from the wording of the subject-matter of the application that it is not
the decision not to award lot 2 of the contract.
VIexturg - 22.254 - 11/30
VI. Second way
VI.1 Submissions of the parties
A. Application
The applicant takes one ground of appeal, the second in the application, of the violation of
the Constitution, in particular Articles 10, 11 and 33 thereof, the Law of 17 June 2016
on public contracts, in particular Articles 4, 66 to 71, 83 and 84 thereof, the Royal
the Royal Decree of 18 April 2017 on the award of public contracts in the
sectors, in particular articles 33, 35, 36, 76, the law of 29 July 1991 on the formal motivation of
1991 on the formal motivation of administrative acts, in particular its articles 33, 35, 36, 76, the
and 3, the law of 17 June 2013 on the motivation, information and remedies
information and remedies in relation to public contracts, certain works contracts, supply and service contracts and concessions,
and services and concessions, in particular Articles 4 and 5, the
general principles of law, in particular the principles of equality, non
discrimination and transparency and the duties of care and attention to detail, patere
legem quam ipse fecisti, the rules applicable to the protection of personal data, namely
protection, namely the General Data Protection Regulation No
2016/679 of the European Parliament and of the Council of 27 April 2016 and the law of 30 July
2018 on the protection of individuals with regard to the processing of personal data, the
personal data, excess of power and manifest error
error of assessment.
After recalling the scope of the contracting authority's obligation to
verify compliance with the selection requirements and the regularity of tenders and prices, and
to include that verification in the reasoned award decision, the applicant
states, by way of preliminary statement, that the report analysing the tenders to which the
refers to in the award decision 'clearly shows an inadequate examination
of the regularity of 3M's tender', that 'such an examination is
and that "the decision based on such a report is illegal in more than one respect
the following legal grounds': requirements for formal reasoning (in particular Article 3(1)(a) of the EC Treaty)
formal motivation (in particular Article 5 of the law of 17 June 2013), obligation to
of 17 June 2016), the normality of prices (Article 84 of the Law of 17 June 2016)
prices (Article 84 of the Law of 17 June 2016) and compliance with the selection requirements
(Articles 66 et seq. of the law of 17 June 2016), including the causes
of optional exclusion (Article 69 of the law of 17 June 2016), the duties of care and
and care, the obligation to treat bidders equally and without
discrimination (Article 4 of the Law of 17 June 2016 and Articles 10 and 11 of the
Constitution), the General Data Protection Regulation No. 2016/679 of
VIexturg - 22.254 - 12/30
Parliament and of the Council of 27 April 2016 and the law of 30 July 2018
on the protection of individuals with regard to data processing
personal data (and more specifically the provisions referred to in support of the plea in law)
which are binding on Vivalia as well as those violated by 3M Belgium) and
the special specifications (which requires compliance with the RGPD - violation of the
principle patere legem quam ipse fecisti).
It divides its plea into four parts.
In the second part, the applicant submits that the statement of reasons
of the contested measure does not make it possible to ascertain whether the opposing party has verified that the intervener's offer
the intervener's offer complied with the RGPD, which the opposing party acknowledges
that such a check did not take place, since it maintains that it is a question of
that the other party acknowledges that such a verification did not take place, since it maintains that this is a matter exclusively of contract performance and that it has
to carry out such verification following the first
council of State and the matters raised therein by the applicant
by the applicant.
Referring to Article 28(1) of the GDPR, it stated that it was for the
the contracting authority to ensure compliance with the GDPR before the conclusion of the
contract and therefore at the stage of awarding the contract, especially since there were indications of
of violation existed. It argues that the Council of State has already considered that the
that the contracting authority - which is responsible for the processing of personal data - must ensure that its
personal data - must ensure that its future co-contractor complies with the regulations
RGPD and therefore carry out this verification at the time of the award of the contract
(rulings ns 246.532 of 23 December 2021, 250.599 of 12 May 2021, no. 251.378 of 19
august 2021). It adds that this verification is also required at the stage of the selection of tenderers
of tenderers, as a violation of the GDPR constitutes a ground for exclusion,
"This is particularly true of serious professional misconduct within the meaning of Article 69 of the
of the law of 17 June 2016, which can be established by any legal means without a
conviction or a court decision is not necessary".
The applicant states that this verification was all the more necessary in the
the present case, since :
- "the contract involves [the processing] of a large quantity of sensitive data of a medical nature, as referred to in Article 9 of the RGPD
medical data, as referred to in Article 9 of the RGPD', so that the procedures
procedures at the stage of contract performance are not sufficient to prevent or remedy a
breach of the GDPR if it occurs;
VIexturg - 22.254 - 13/30
- "There are elements that give rise to fears of a breach of the RGPD
on the part of 3M", taking into account (1) the "transfer of data to
to a third country" to a third company located in Russia - implying a control of the
compliance with Chapter V of the GDPR to ensure that "the level of protection of individuals
individuals guaranteed by the [GDPR] is not compromised" - as well as (2) the "reference to
reference to contracts to be signed which are not [...] transmitted', contracts which
contracts that were to "also attract Vivalia's attention" and of which Vivalia was to "at least
ask 3M [for a copy]".
The applicant points out that the other party was aware of the problem:
through the press, because of its previous contract with 3M and through the various letters it sent to it, including the copy of the letter sent by the
various letters sent to it, including a copy of the letter sent by the Medical Council to the
the Federal Minister of Health, which states: "The other party was informed of the problem
the Federal Minister of Health, which clearly states that the RGPD has been violated.
From all these elements, the court concluded that the other party could not 'reasonably and legally
could not 'reasonably and legally be satisfied with the statements
statements made by 3M in its offer, in a general and abstract manner", as these statements
statements were largely insufficient and did not provide "any element of response regarding the
relationship with 3M's partner in Russia and the content of the contracts to be signed"
to be signed". It considers that the statements made by 3M in its offer are not convincing, since the
offer are not convincing, since :
"3M refers to commercial contracts that are not supplied and that are even being amended
3M refers to commercial contracts which are not provided and which are even still being amended;
- 3M merely refers to "very strict internal procedures" without giving further details of the content of these procedures
without further detailing the content of these procedures;
- 3M completely ignores its relationship with a subcontractor located in
Russia;
- 3M claims to go further than the legal requirements by conducting a Data
Processing Impact Assessment, although this was an obligation under
according to Article 35 of the GDPR".
In a fourth limb, the applicant claims that there was no
sufficient verification of the prices offered by the intervening party, as the
analysis report only mentioned, in a stereotypical manner, the prices offered by the intervening party,
that 'a verification and control of the prices was carried out' and that 'the contracting authority
the contracting authority did not find any abnormal prices'. According to the Commission, this verification
was all the more necessary since, on the one hand, "the contract includes a grouping software
software that 3M has a monopoly on (cf. 3rd medium), which entails a risk of
which entails a risk of price distortion (upwards or downwards in relation to the
price claimed from CIBES for the same software) and, secondly, the contract was awarded to this
and, secondly, the contract was awarded to this company for an amount significantly higher than the
particularly for lot 3 (76% increase per year)
VIexturg - 22.254 - 14/30
(76% increase compared to the estimate), and at the prices it proposes (well above the 15% "alert threshold
(well above the 15% "alert threshold" applied to works contracts).
VIexturg - 22.254 - 15/30
B. Commentary note
The other party contests the applicant's interest in the second plea in law
of the application. It considers that the applicant has failed to demonstrate in concrete terms the injury which it
caused or was likely to cause it the alleged violations, since the applicant's offer was itself declared
the applicant's offer had itself been declared irregular. It adds that the complaint alleging non-compliance with the
of the RGPD constitutes an element relating to the performance of the contract which cannot vitiate
the regularity of the intervening party's tender, as this obligation is included in the
clauses relating to the performance of the contract". It notes that, in accordance with this
required by the special conditions of contract, the intervening party undertook in its tender
to respect the RGPD and that "it would be excessive to impose on the
it would be excessive to require the contracting authority to seek additional guarantees [...] even though the
the public procurement regulations provide for specific procedures in the event of
even though the public procurement regulations provide for specific procedures in the event of breaches by the successful tenderer during the performance of the contract'. It concludes that,
by its second plea, the applicant is in fact inviting the Council of State to carry out a
it deduced that, by its second plea, the applicant was in fact inviting the Council of State to carry out a "control over the execution of the works", for which it had no jurisdiction. It concludes that
deduces that this plea is inadmissible.
As to the seriousness of the second plea, the other party
that the report analysing the tenders shows that it 'has indeed
that it had indeed carried out a complete analysis of the tenders and verified their regularity", that
"the award report may contain tables and need not necessarily contain a lengthy statement of reasons
and does not necessarily have to contain a lengthy statement of reasons to explain that each point of the tender has been
the special specifications" and that, in this case, the reasoned award decision and the
the reasoned award decision and the tender analysis report to which it refers
the applicant to understand the reasons for which its tender was rejected and those for which it was rejected
the reasons why its tender was rejected and those why 3M's tender was accepted' and
"to verify in the light of which criteria the successful tenderer's offer was
and to establish that an effective examination was carried out by the other party".
More specifically, with regard to the second part of the plea, it
states as follows:
"(1) Under the public procurement rules, a contracting authority is required to check whether tenderers
(1) Pursuant to the public procurement rules, a contracting authority is required to check whether tenderers meet the selection criteria
selection criteria, the regularity of the tenders submitted, and the normality of the prices proposed.
2. It is clear from the award decision at issue that the formalities for analysis
the formalities of analysis as provided for in the public procurement regulations were indeed
complied with by the other party.
Firstly, the other party examined the question of selection by checking whether
3M met the criteria relating to the right of access, as well as those relating to
the qualitative selection criteria.
Secondly, it appears from the third page of the report that the opposing party verified the
3M's bid was in order.
VIexturg - 22.254 - 16/30
Finally, the opposing party applied the various award criteria by lot. It
it is specified that a verification and control of the prices was carried out and that the
the analysis of the tender of the other party was carried out by the contracting authority.
The analysis of 3M's tender was carried out by the other party in accordance with the applicable regulations and this is sufficiently clear from the information provided
applicable regulations and this is sufficiently apparent from the disputed award report
report.
The award decision adopted by the opposing party therefore demonstrates that
that a verification of the regularity of 3M's tender was indeed carried out
and that this verification is in order.
3. Contrary to what the applicant claims, it was not for the opposing party to explain in
to explain specifically in the award decision why it considered that 3M's bid was
that 3M's tender offered sufficient guarantees as to compliance with the RGPD
compliance with the RGPD.
Indeed, the Special Conditions of Contract stated on page 14:
"The contracting authority and the successful tenderer undertake to process the personal data
collected under this public contract in accordance with the General Data Protection Regulation
general Data Protection Regulation 2016/679 of the European Parliament and of the
of the Council of 27 April 2016.
In this context, the successful tenderer and its subcontractors undertake to ensure that the
personal data collected will be used solely for the performance of the
of the contract, or in fulfilment of a legal obligation, or with the explicit consent
of the contracting authority".
This requirement is included in the "Contract performance clauses" of the
special contract documents. It is therefore during the performance of the contract that compliance with this requirement will have to be verified
it is therefore during the performance of the contract that compliance with this requirement must be verified. By submitting its tender
the successful tenderer undertakes the obligation to comply with the provisions of the RGPD in
in the execution of the contract.
Compliance with the GDPR should therefore not be checked at the stage of the analysis of the
(it is not a selection or award criterion) and could not have the effect of rendering
and could not have the effect of rendering 3M's tender irregular.
Furthermore, the applicant is wrong to maintain that the verification of compliance with the
of the RGPD by the tenderers was binding on the opposing party since that would
that this constituted a ground for exclusion. In fact, that exclusion is first of all
optional. Secondly, the applicant refers to the existence, on the part of the company
3M, of elements which, in its view, give rise to fears of a breach of the RGPD. There is therefore
there is therefore no proven serious professional misconduct on the part of 3M. The applicant's criticism
the applicant's criticism is therefore unfounded.
In any event, with regard to the processing of data, 3M explains
the operation of its portal and the security processes implemented in its offer in the document
in its offer in the document entitled 'Complete and detailed technical description of the
3M Benchmark".
The company also specifies in its document "Additional information
the company also specifies in its document "Additional information relating to the Public Service Contract for the subscription of a
analysis and feedback tool for hospital medical activity" that
activity" that:
"Currently, the Belgian Data Protection Authority does not provide any general
accreditation in general for any tool, programme, etc. related to data processing.
currently, the Belgian Data Protection Authority does not provide any accreditation in general for any tools, programs, etc. related to data processing. 3M Belgium does however have processes
of the Contract. The tenderer shall furthermore request the Awarding Authority to sign a
To sign a data processing contract (in addition to a commercial contract) if the
(in addition to a commercial contract) if 3M Belgium wins one or more
the Contract in its entirety; in order to comply with the legal requirements imposed by
legal requirements imposed by the European Regulation n°2016/679. In addition, 3M
Belgium has gone further than the legal requirements imposed by the
Legislation by having undergone a Data Processing Impact Assessment, i.e. a
Data Processing Impact Assessment for its Benchmark tool, for the sake of clarity, transparency
for clarity, transparency and compliance with the requirements of the
data protection legislation".
VIexturg - 22.254 - 17/30
3M's offer therefore provides clear guarantees of compliance with the
RGPD.
The applicant's criticisms regarding fears of infringement of the RGPD by 3M are
3M are vague and imprecise and could not have the effect of rendering the applicant's
render 3M's tender irregular.
The second part is not serious
As for the fourth part, the opposing party argues that
as to the fourth part, the opposing party argues that the following elements are present:
"Contrary to what the applicant claims, the opposing party did indeed check the prices
contrary to what the applicant claims, the other party did carry out a verification of the prices proposed by the tenderers.
It is stated in the tender analysis report that '[a] verification and control of the prices
verification and control of prices was carried out. The contracting authority did not find any abnormal prices
abnormal prices'.
Furthermore, a deviation, even a significant one, of the proposed price from the estimate
the estimate made by the contracting authority does not lead to the conclusion that the
price.
Your Council has already ruled that:
"The fact that the price proposed by the successful tenderer is significantly lower than the
the estimated amount of the contract does not imply ipso facto that the
that the contracting authority must conclude that the price proposed is manifestly abnormal"
price".
The doctrine also specifies that the mere fact that there is a difference in the amounts of
the doctrine also states that the mere fact of a difference in the amount of the contracting authority's offer is not sufficient to justify a price review on the basis of the principle of thoroughness
The contracting authority could legitimately consider, when analysing the tenders submitted to it, that its estimate of the price
the contracting authority could legitimately consider, when analysing the tenders submitted to it, that its estimate for the third lot was not correct. It could not be
it could not be reproached for not declaring the price proposed by 3M
as abnormally high.
The fourth part is not serious
C. Application to intervene
The intervener submits that "a large part of this plea is based on the
based on the alleged non-compliance of the former data processing contract with the
3M's old data processing contract with the RGPD', that these 'old 3M contracts were passed on by a
employee of a Brussels hospital" and "published on 22 March 2021 in the version
online version of the newspaper Le Soir', that 'this employee breached her duty of confidentiality' and that the
confidentiality' and that the applicant had therefore unlawfully obtained those
documents, so that she cannot use them in the context of a procedure
(Articles XI.332/4 and XI.336/3 of the Code of Economic Law). It concludes that
deduces that "the pleas of non-compliance of this old contract with the RGPD
must be declared inadmissible or unfounded". It adds the following:
"These contracts are indeed confidential and have a very important commercial value, as they are the result of
value, as they are the result of considerable time and intellectual effort
intellectual work. The drafting of the new DPA and the new CLAs took from July 2021 to
the drafting of the new DPA and the new CLAs lasted from July 2021 to February 2022, i.e. 8 months of work!
The contracts on which CIBES is based date from 2019. However, the
legislative framework for data protection has changed significantly in 2020 (judgment
in case C-311/18 (Schrems II) of the European Court of Justice) and 2021
VIexturg - 22.254 - 18/30
(new CCTs - European Commission decision 2021/914). The
new documents, the DPA (data processing agreement) and the CCTs
take into account these developments and the development of the legislative framework. These
developments are essential and necessary for any company processing personal
personal data.
In addition, the DPA contains the following disclaimer on each page:
"Confidential - For use by hospital management and its DPO only - Not for distribution outside the hospital
not to be distributed outside the hospital".
3M also explicitly reserves the right to obtain compensation for damages
also the right to take all other necessary measures against the obtaining, use or disclosure
the obtaining, use or disclosure of the contracts which are the subject of these proceedings
proceedings'.
As to the second limb, the intervener argues that "the
The SCC makes it clear that compliance (or non-compliance) with the RGPD concerns a
problem of execution and not of award', that this problem is therefore exclusively
the execution of the contract, that 'the SCC referring to the RGPD
takes precedence over the data processing contract', that by submitting its offer it has
that, by submitting its tender, it has in any case committed itself to 'strict compliance with the
that in the event of a breach during the performance of the contract, the other party
in any event, it undertook to "comply strictly with the relevant regulations" and that, in the event of a breach during the performance of the contract, the other party "could take the necessary measures ex officio".
As to the Applicant's reference to an "exclusion ground", the party
as to the Applicant's reference to a 'reason for exclusion', the Intervener insists that it is optional and that there is no evidence that it was guilty of
that she had been guilty of "serious professional misconduct which
integrity" (Article 69(3) of the Law of 17 June 2016 on public contracts)
17 June 2016 on public procurement). In this respect, it points out that the applicant merely "states
rumours in the press which were clearly refuted by 3M in an objective manner
that "in these circumstances, [the opposing party] could not exclude 3M on this basis" and that "a
and that 'a fortiori, [it] was under no obligation to exclude
3M ". According to the intervener, it is again 'wrong to argue
that an a posteriori verification would be insufficient', since the RGPD puts in
the applicant] argues that an a posteriori verification is insufficient', since the GDPR establishes mechanisms that make it possible to remedy any damage and
that, in the context of the contract in question, the opposing party may also apply
penalties for non-compliance with the RGPD. Referring to its rebuttal to the
the third part of the plea, it argues that 'in any event [...] there was no
there was no reason to fear possible violations of the RGPD'.
As to the fourth limb, the intervener states as follows:
" 40. In this part, CIBES maintains that there was no verification of prices by VIVALIA and that this verification was
prices by VIVALIA and that, in any case, this verification was insufficient.
41. This allegation is strongly contested on the basis of the following arguments:
1) the contracting authority has a wide discretion in examining the prices of tenders that are
1) the contracting authority has a wide discretion in examining abnormally low or abnormally high tender prices.
VIexturg - 22.254 - 19/30
In principle, it is not for the Council of State to substitute its own assessment for that of the
of the contracting authority in this respect.
2) It is not a question of abnormally low prices, but of prices that would be too high
according to CIBES (front-loading).
The phenomenon of front-loading consists of spreading prices disproportionately over the
disproportionately over the duration of the contract, in particular by inflating the elements that
to be realised first in order to secure large advance payments or payment facilities
payment facilities. These high items are then compensated for by lowering the prices of the items that are to be
these high items are then compensated for by lowering the prices of the items that are to be performed later.
it is not possible to front-load (as this is an annual lump sum price) and even less possible that
3M would have been guilty of frontloading.
A case of front-loading must indeed be demonstrated by the applicant. Mere
mere allegations are not sufficient.
It is therefore not a question of abnormally low prices which would jeopardise the proper performance of the contract
performance of the contract.
3) The comparison of CIBES' prices with those of 3M is not at all relevant, since there is no
3) The comparison of CIBES' and 3M's prices is irrelevant, as there were only two bidders. It could just as well be that
cIBES' prices are abnormally low, while 3M's prices are normal
s prices are normal.
4) The comparison with VIVALIA's estimate is also irrelevant
relevant. The Council of State has already ruled:
"The fact that the price proposed by the successful bidder is significantly lower than the
the estimated amount of the contract does not imply ipso facto that the
that the contracting authority must conclude that the price proposed is manifestly abnormal"
abnormal".
5) It has already been decided that a brief but sufficient statement of reasons is
admissible.
In the present case, VIVALIA mentions in the award decision that it "did not
abnormal prices".
Such a decision does not require a special statement of reasons.
The Council of State has already ruled that:
"The decision by which the opposing party considers as regular the offers of the companies
offers of the companies LAURENTY and CARO-MAINTENANCE as regular, without the
prices proposed in them did not appear to be abnormal, did not have to be
the subject of a special statement of reasons. Insofar as it invokes the violation of articles
4 and 5 of the law of 17 June 2013 on the motivation, information and remedies
information and review procedures in relation to public contracts and certain contracts for works, supplies and services
and services, as well as Articles 2 and 3 of the Law of 29 July 1991 on the
29 July 1991 on the formal motivation of administrative acts, the
the plea cannot be taken as serious".
42. The fourth part of the plea is therefore not serious
VI.2 Assessment of the Council of State
A. As to the relevance of the second plea, in its second and fourth
branches
The opposing party cannot be followed when it maintains that the applicant
applicant has no interest in the second plea in law, since its offer has
declared irregular. The plea criticises the legality of the tender of the successful tenderer,
the plea criticises the legality of the successful tenderer's tender, whereas only two tenders were submitted: that tender and that of the
applicant. Assuming that the opposing party did not carry out the verifications
VIexturg - 22.254 - 20/30
and that the intervener's tender was to be considered irregular and rejected, the
the contract at issue could not have been awarded, with the result that the illegalities
in question may have harmed the applicant by depriving it of the opportunity to have the disputed
award procedure.
Nor can the opposing party be followed when it claims that the
the Council of State to 'carry out a control on the execution of the works'.
On the one hand, the fourth part of the plea concerns the verification of prices and is
the compliance with the RGPD by the contractor. On the other hand, by
the other hand, by reproaching the opposing party for not having carried out, before the award of the contract
the selection of tenderers and the verification of the regularity of their bids
of their tenders, a check on compliance with the RGPD (second part of the
of the plea in law), the applicant does not plead the illegality of an act which
performance of the contract at issue, but rather of the decision awarding it to the
intervener. The Council of State has jurisdiction to hear this type of
grievance.
As to the intervener's request that the plea should be declared inadmissible on the grounds that it was based on a document that had been obtained in an improper manner, the
ground that it is based on a document that was obtained in a manner that is
the second and fourth limbs of the plea does not require consideration of the documents in question
the second and fourth limbs of the plea do not require consideration of the documents in question.
For the rest, the Council of State has no jurisdiction to find an infringement
the unlawful obtaining, use or disclosure of a business secret, to order the
secret, to order the cessation of the infringement or to order compensation for the damage suffered to
suffered as a result of its commission.
The second and fourth limbs of the second plea are admissible
admissible.
B. As to the second limb
Article 83 of the law of 17 June 2016 on public contracts
er
requires the contracting authority to verify the regularity of tenders. Article 76, § 1
of the Royal Decree of 18 April 2017 on the award of public contracts in the
sectors specifies that the tender may be affected by an irregularity
substantial or insubstantial irregularity. In particular, it deems substantial irregularities to be
irregularities consisting of "non-compliance with the minimum requirements and
requirements which are indicated as substantial in the contract documents".
Paragraph 5 of the above-mentioned Article 76 provides that "for contracts for which the
estimated value is below the threshold set for European advertising and for which a
for which use is made of a procedure allowing for negotiation [...] the contracting authority shall
VIexturg - 22.254 - 21/30
the contracting authority shall decide either to declare the substantially irregular tender null and void
the contracting authority shall decide either to declare the tender affected by a substantial irregularity null and void or to have the irregularity rectified [...]". In this case,
it is for the contracting authority to exercise its discretion in deciding
discretionary power in deciding whether or not to have recourse to the possibility of rectifying such a
irregularity.
Article 41 of the above-mentioned Law of 17 June 2016, which relates to the
procedure with prior publication, excludes from the scope of the negotiations the
from the scope of negotiations the "minimum requirements" of the contract. These cannot be
and the contracting authority is obliged to check that the final offers meet them
that the final offers meet them.
Contrary to what the intervener claims, the other party
is not a 'mere' contracting authority with no data protection competence
competence in the field of data protection. The subject matter of the contested contract - which
includes the processing of personal data relating in particular to the
health - makes it a 'controller' of such data, within the meaning of the RGPD. It
is therefore responsible for compliance with this regulation for the processing of personal data
personal data that it entrusts to the contractor (Article 5 of the RGPD).
Article 28.1 of the RGPD states that "where processing is to be carried out for the purposes of
a controller, the latter shall only use sub-processors providing sufficient
processors who present sufficient guarantees as to the implementation of appropriate technical and
appropriate technical and organisational measures to ensure that the
processing meets the requirements [of the GDPR] and ensures the protection of the rights
of the data subject". Therefore, when concluding a contract which involves the
personal data, the contracting authority must prima facie
verify that the services offered by tenderers meet the
"sufficient guarantees" mentioned above. During the performance of the contract, the contracting authority is obliged to
suspend or terminate the transfer of data if it considers that the protection of the data is not or is no longer
protection is not or is no longer ensured.
In this case, the issue of compliance with the RGPD is, of course, dealt with in the
the special conditions of contract under the "clauses relating to the performance of the contract", under
under point 3.7 of the special conditions of contract, which provides as follows
"3.7 RGPD regulations
The contracting authority and the successful tenderer undertake to process personal data
collected in the context of this public contract in accordance with the General Data Protection Regulation
general Data Protection Regulation 2016/679 of the European Parliament and of the Council of
Council of 27 April 2016.
In this context, the successful tenderer and its subcontractors undertake to ensure that the
that the personal data collected will be used solely for the performance of the contract
contract, or in fulfilment of a legal obligation, or with the explicit consent of the
the contracting authority
VIexturg - 22.254 - 22/30
However, this requirement is also included in the title of the special specifications
but this requirement is also included in the title of the special specifications relating to the "Technical part" in point "5.4 Data security". It
it is stipulated in particular that data and information must be processed in
confidentiality "in accordance with the RGPD legislation" and that "the
the tenderer will state that its assessment tool is accredited by the
"Commission for the Protection of Privacy".
It is therefore quite clear that the issue of RGPD compliance
compliance concerns the performance of the contract, but is also a "technical specification" of the contract
"technical specification" of the contract. By its nature, this specification constitutes
the nature of this specification is a "minimum requirement" which tenders submitted must necessarily
comply with. Compliance with it must therefore be verified by the contracting authority at the stage of
stage of checking the conformity of tenders, before awarding the contract.
Neither the tender analysis report nor the award decision
nor the award decision contain any explanation of a possible verification of compliance with the
RGPD. In the tender analysis report, it is only mentioned, in
in the tender analysis report, it is only mentioned in general terms, "regularity: yes". If a motivation, even a brief and general one
such as that of the contested act, can be admitted, it is on condition that it can be
that it can be verified by reading the documents in the file and that the file does not reveal any particular difficulties
difficulties which require a more detailed statement of reasons.
In the present case, it does not appear from the administrative file that the
that the opposing party has verified that the service offered by the intervening party presents
sufficient data processing safeguards. As the applicant points out, the
the applicant, the opposing party itself acknowledges that such a check did not have
that such a verification has not taken place, since it states that this is a matter exclusively for the
performance of the contract.
Furthermore, the file reveals a number of difficulties which were known to the
known to the other party. On the one hand, the applicant repeatedly drew attention to the
the attention of the contracting authority to this particular point, including by
following the suspension judgment No 252.355 of 8 December 2021, a letter to the
the Federal Minister of Health with the title "Infringement of the law"
The Federal Minister of Health with the title "Infringement of data protection legislation - 3M benchmarking"
benchmarking 3M". This letter mentions, among other things, that "data to
personal identifiable health data are passed on, on a large scale, to a third party without
to a third party without adequate contractual arrangements for the
processing, access by and transfer to third countries (USA and Russia)".
On the other hand, as the intervener states in its application to intervene,
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on 2 April 2021, i.e. after the submission of tenders, but before the decision to award the
the decision to award the contested contract, a letter 'to its clients (including
including Vivalia)" in which it mentions "publications in the media" concerning its
concerning its benchmarking services. It mentions in particular the use of
the use of a Smart Analytics subcontractor based in Russia and the need to assess and
and the need to evaluate and implement additional measures following the Scherms II judgment of
16 July 2020, C-311/18.
In its offer, however, the intervening party had limited itself to stating
the following:
"Point 5.4. - Data security, 2nd paragraph:
Currently, the Belgian Data Protection Authority does not provide any general accreditation for any tools, programmes, etc. relating to the data protection of individuals
accreditation in general for any tools, programmes, etc. related to data
data processing. however, 3M Belgium has very strict internal procedures
3M Belgium does however have very strict internal procedures regarding the processing of data related to the performance of the contract. The
the tenderer will also ask the contracting authority to sign a data processing
to sign a data processing contract (in addition to a commercial contract)
(in addition to a commercial contract) if 3M Belgium is awarded one or more lots or the entire
in its entirety; in order to comply with the legal requirements imposed by the
European Regulation n° 2016/679. In addition, 3M Belgium has gone beyond the
legal requirements imposed by the RGPD legislation by having undergone a Data Processing
Processing Impact Assessment for its Benchmark tool, which is based on the
benchmark tool, for the sake of clarity, transparency and compliance with the
and compliance with the requirements of data protection legislation
The offer makes no mention of the use of Smart Analytics,
its sub-processor, within the meaning of the GDPR, established in Russia (a third country not subject to
to this regulation and which is not the subject of an adequacy decision by the
Commission), nor of the particular difficulties that a transfer to a
third country may pose in terms of data protection (Article 44 and following of the
RGPD), whereas these difficulties were clearly highlighted, before the
in the above-mentioned Scherms II judgment of 16 July 2020. It merely
that it has put in place "very strict internal procedures" to comply with the
to comply with the regulations, stating that if the contract is awarded, a
contract will be signed "in addition to a commercial contract", without however specifying the content of the contract
contract', without however specifying the content of these procedures or the content of these
contracts. It also mentions a 'data processing impact assessment' that it has
it also mentions a "data processing impact assessment" that it has carried out, without however revealing anything about the
of this analysis, in particular with regard to the assessment of the risks involved and the
risks involved and the measures envisaged to address them.
In view of the above-mentioned difficulties, in particular the proven transfer of
data entrusted to the intervening party to a subsequent subcontractor established in
Russia, there was no evidence that the party's offer was
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the intervening party's offer was in order by mentioning, without further explanation, "regularity :
yes". It was up to the opposing party to carry out the necessary verifications and
and to indicate the reasons why it could consider that this offer presented "sufficient guarantees" to
the "sufficient guarantees" to consider that the data and information contained in the offer were
information entrusted to it would be treated confidentially "in accordance with the
legislation", as required by Article 5.4 of the special specifications as a "minimum
as a "minimum requirement" of the contract.
The other party failed to comply with the verification and
and formal reasoning.
To that extent, the second part of the second plea is serious
serious.
For the rest, it is primarily up to the contracting authority and not to the Conseil d'État to assess whether a tender complies with the requirements of the specifications
The Conseil d'État to assess whether a tender complies with the requirements of the contract documents
specifications. In this respect, it should be noted that most of the information
produced by the intervener in the present procedure to establish that a tender complies with the
compliance with the RGPD of the processing of the data entrusted to it were not
submitted to the opposing party, some of these elements having been submitted after
adoption of the contested measure.
C. As to the fourth part
Article 84 of the law of 17 June 2016 on public contracts
provides as follows:
"The contracting authority shall verify the prices or costs of the tenders submitted, in accordance with the procedures laid down by the King
submitted, in accordance with the procedures laid down by the King. The King may provide for
exceptions to the verification of prices or costs for contracts fixed by
The King.
At the request of the King, tenderers shall provide, during the award procedure
procedure, all information allowing such verification
Article 33 of the Royal Decree of 18 April 2017 on the awarding of
public contracts in the traditional sectors provides as follows:
"After rectifying the tenders in accordance with Article 34, the contracting authority shall
the contracting authority shall verify the prices or costs of the tender in accordance with
in accordance with Article 35 and, in the event of suspicion of abnormally low or high prices or costs
prices or costs, it shall carry out an examination of prices and costs as referred to in Article 36
referred to in Article 36
Article 35 of the same Royal Decree provides as follows:
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"The contracting authority shall subject the tenders submitted to a verification of prices
or costs. To this end, it may, in accordance with Article 84(2) of the Law, invite the tenderer to provide all necessary information,
invite the tenderer to provide all necessary information
The fact that Article 36 of the Royal Decree of 18 April 2017 determining the
applicable rules "when prices or costs appear abnormally low or high" is not prima facie
the fact that Article 36 of the Royal Decree of 18 April 2017 determining the rules applicable "when prices or costs appear abnormally low or high" is prima facie not applicable to the disputed procurement procedure (cf.
article 36(6) of the same Royal Decree) does not entail any consequences for the
the obligation to check prices as provided for in Article 84 of the Law of 17 June 2016
of 17 June 2016 and 33 and 35 of the Royal Decree of 18 April 2017.
The special specifications themselves provide as follows:
" 2.4.3. Price control
request from the tenderer any information intended to verify the prices offered
prices offered. Where appropriate, the tenderer will be required to provide the Adjudicator with
the Adjudicator with all the information necessary to carry out the price
verification of prices within 12 calendar days of the request for justification
justification".
The purpose of the price verification is to search for possible abnormal prices
prices. The objective is twofold: on the one hand, to protect the
the contracting authority by enabling it to ensure that the prices offered guarantee
performance of the contract in accordance with the requirements laid down in the contract documents
and the services proposed by the tenderers and to exclude any speculation to the detriment of
to the detriment of the fundamental interests of the contracting authority and of public money;
on the other hand, to protect the requirements of healthy competition by avoiding that the
the contracting authority endorses behaviour that is contrary to it and that public contracts are
and that public contracts are ultimately awarded to bidders who have submitted
prices, thereby distorting normal competition. If the
if the price verification does not follow the same logic in the face of apparently unreasonable prices, the
the same logic when faced with apparently abnormally low prices as when faced with apparently abnormally high prices, the
the regulations on public procurement do not make a distinction. When faced with prices
prices, it is particularly careful to avoid the risk of speculation at the expense of public
speculation at the expense of public money.
The contracting authority has a wide margin of manoeuvre both to
to detect apparently abnormal prices and to request information and
information and justification from the tenderer concerned and to assess the validity and
and relevance of the information.
In this case, the reasoned award decision provides the overall prices
of each lot (excluding VAT and including VAT). As for the tender analysis report, it provides,
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the price award criterion, it produces tables that show, for lots 1 and 3, the annual costs per hospital (excluding VAT and VAT)
and 3, the annual costs per hospital centre (excluding VAT and VAT) as well as the
total cost for the three centres, respectively over one and three years (excluding VAT and
and VAT). The tables are accompanied by the following statement:
the tables are accompanied by the following statement: "A price check and verification has been carried out. The contracting authority
the contracting authority did not find any abnormal prices".
Following a request by the auditor in charge of the investigation, the
the day before the hearing, the opposing party sent the Council of State :
- a letter dated 25 June 2021 from the opposing party inviting the intervener to
a letter dated 25 June 2021 from the opposing party inviting the intervening party to justify 'the composition of the price of [its] offer in a detailed manner
for lots 2 and 3 of the contract, since the price proposed for these lots 'appears to
be abnormal';
- the intervening party's reply to this request, dated 29 June 2021 (confidential
confidential).
The opposing party itself therefore considered that the prices for the
and 3 in the intervener's offer appeared to be abnormal and consequently requested
and consequently requested justifications from this tenderer. However, it does not appear from
the contested measure or the administrative file that the opposing party proceeded to
analysis of these justifications. The latter take as their starting point the prices
the prices of the previous contracts concluded in 2017 with the other party - without
the prices of the previous contracts concluded in 2017 with the opposing party - without, however, making a detailed 'price breakdown', as the opposing party had requested
as requested by the other party. Such justifications did not make it clear that
and without further explanation that 'a price verification and control was carried out' and that
and that it "did not find any abnormal prices". When the authority
necessary to invite a tenderer to justify certain prices which appear to be abnormal, the decision not to
abnormal, the decision not to consider them as such should be made in accordance with the
be precisely reasoned, showing the reality, accuracy and relevance of the factors on which the
the reality, accuracy and relevance of the elements on which the contracting authority has based its decision. This is especially true
this is all the more the case as the contracting authority has a wide range of options in this area
discretion.
As the other party had requested justification for the apparently abnormal prices, it was
it was incumbent on the Commission to carry out a concrete and detailed examination of the
examination of these. Neither the contested measure nor the administrative file give an account of the analysis of these justifications and do not allow the reasons for the
analysis of these justifications and make it possible to understand the reasons why they were
for which they were accepted. There is nothing to suggest that the opposing party has
that the opposing party was able to verify that the prices proposed did not constitute an exorbitant
the risk of speculation complained of by the applicant.
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Although the complaint relates more specifically to lot 3 of the contract, it appears that the
the contract, it also appears to be able to concern lot 1 of the contract. It is clear from the documents in the file that the
the file that the opposing party, without any justification, modified the content of
offer by transferring to lot 3 of that offer an item that the intervener had expressly charged to lot 1 of that
the intervener had expressly charged to lot 1 of that offer, thereby modifying the
the prices of each lot. Such an operation is prima facie likely to
such a transaction is prima facie likely to influence the price control and, in particular, the detection of prices
prices for lots 1 and 3 of the contract.
The fourth part of the second plea is serious.
VII. Balance of interests
The opposing party does not identify - and the Council of State does not see - the
the negative consequences of a stay of execution of the contested act, which would
outweigh the benefits.
VIII. Confidentiality
The opposing party requests that exhibits A and B of the administrative file
file (offers of the applicant and the intervener) remain confidential, since
information protected by business law.
After the administrative file was submitted, it also transmitted, as a
confidentiality, an unredacted version of the tender analysis report (unnumbered document), the
(Exhibit C) and the letter of 29 June 2021
containing the price justifications submitted by the intervening party (Exhibit D).
The intervening party makes the same request in respect of exhibits 4 to 7
annexed to its application to intervene. It submits that the data contract, the
And the TIA are of significant commercial value, being "the fruit of considerable
time and intellectual work" and that "the
DPA also contains technical and organisational measures (TOMs)
and that "the DPA also contains technical and organisational measures (TOMs) specific to 3M and forming part of its business secret". As for the emails exchanged
with the three French-speaking hospital federations, it argues that they relate to
as for the emails exchanged with the three French-speaking hospital federations, it argues that they relate to "the process of updating the above-mentioned documents" and that "this document
is therefore also confidential".
As these claims are not contested, it is appropriate, at this stage of the
the procedure, the confidentiality of the documents concerned should be maintained.
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FOR THESE REASONS,
THE COUNCIL OF STATE DECIDES :
er
Article 1.
The application to intervene lodged by SRL 3M Belgium is
allowed.
Article 2.
The suspension of the execution of the decision of 21 December 2021 of the
of the board of directors of the intercommunal company Vivalia to award to SRL 3M
Belgium lots 1 and 3 of the public service contract "relating to the subscription to a
collective analysis and feedback tool concerning medical hospital activity
(CSC N° 1/013/2020) is ordered.
Article 3.
The immediate execution of this judgment is ordered.
Article 4.
Exhibits A, B, C, D and the unredacted version of the tender analysis report
report attached to the administrative file as well as Exhibits 4 to 7 attached to the
application to intervene are, at this stage of the procedure, considered confidential.
Article 5.
The costs, including the procedural indemnity, are reserved.
Delivered at Brussels, in open court, by the Sixth Chamber and the Court of First Instance
sitting as an interim measure, on 6 May 2022, by :
Florence Piret, Councillor of State, acting President,
Vincent Durieux, Registrar.
The Registrar, The President,
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Vincent Durieux Florence Piret
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