On 8 July, the Council of State handed down an interesting judgment in the context of combating social dumping and limiting unbridled subcontracting (Judgment no. 254.257 of 8 July 2022, s.a. LESUCO).
In this case, the Municipality of SAMBREVILLE had required, in a public works contract, that tenderers submit to it, for the purposes of qualitative selection, a declaration indicating their average annual workforce, with the requirement of having a ratio of annual turnover to average annual workforce of no more than EUR 500,000 per worker.
This therefore required tenderers to have a minimum number of workers on their own payroll. In doing so, companies with no staff or with very few staff, which operate exclusively with chains of subcontractors, could not be selected.
Notwithstanding the objections of an applicant against such a criterion, the Council of State held that a set of special tender specifications may impose a "turnover/workforce" ratio as a qualitative selection criterion in order to combat social dumping, by excluding tenderers that make excessive use of subcontracting, and thereby to ensure the technical and professional capacity of tenderers to perform the contract.
Of course, this qualitative selection requirement does not prevent a tenderer from relying on the capacity of third parties, but those third parties will themselves have to be able to meet this requirement, which will not be straightforward.
Contracting authorities could draw inspiration from this example in their future contracts in order to combat social dumping.
