Public procurement: neutralization of the advantage of the incumbent

In the latest issue, 1/2022 of the journal L’Entreprise et le Droit, Emmanuel van Nuffel d’Heynsbroeck discusses the neutralization of the advantage of the contractor in place in public procurement procedures.

His article takes as a starting point the critical case of a contracting authority having imposed on competing bidders a transitional service between the former and the new contract that the contractor in place does not have to bear. He maintains that the contracting authority cannot include in the comparison of tenders with the contractor in place a particular requirement which concretely benefits the latter, even if this requirement is necessary for the performance of the contract and represents a cost which the contracting authority will have to bear if he awards the contract to one of his competitors.

Click here to access the article (in French, via Jurisquare)


For more than 50 years, the journal L’ENTREPRISE ET LE DROIT has been the reference for case law and legal doctrine in Belgium in the field of construction law in all its facets and ramifications. It not only pays attention to traditional matters (such as the building contract, the Breyne Act, the mission of the architect, public procurement regulations, etc.), but also to the broader relevant legal disciplines such as urban and spatial planning, unfair competition, expert research, nuisance from neighbors, environmental law. etc.

The journal L’ENTREPRISE ET LE DROIT is an indispensable work tool for anyone who, regardless of his or her education, is professionally involved in construction law. It strives to be the most concrete legal journal in this field. For example, the summaries of case law are not limited solely to the legal grounds on which the judgments are based, but the circumstances of the case are also briefly explained in order to provide the reader with a better insight into the application of these legal grounds. If useful, the history of a decision is also discussed or new developments in the case are followed up. In addition, a large proportion of published decisions are commented by the editors or by experts.

The journal is published four times a year and is bilingual French/Dutch: legal doctrine and case law appear in the original language, but each statement is preceded by a summary in both national languages.