Algeria's Council of State (Conseil d'État), the nation's supreme administrative court, annulled a DZD 42 billion (approximately USD 310 million) desalination plant procurement award by the Ministry of Water Resources, finding systematic irregularities in the bid evaluation process. In a landmark ruling that reshapes the landscape of public procurement litigation in Algeria, the Court held that the statutory grounds for annulment under Article 82 of Presidential Decree No. 15-247 on Public Procurement extend beyond procedural defects to encompass substantive unfairness in the evaluation itself — including manipulation of scoring criteria, undisclosed conflicts of interest among evaluation committee members, and post-hoc reweighting of technical criteria to favour the incumbent contractor.
In January 2024, the Ministry of Water Resources issued an open international tender for the design, construction, and commissioning of a 300,000 m³/day seawater reverse-osmosis desalination plant at Cap Djinet, 60 km east of Algiers. The project formed part of Algeria's Emergency Desalination Programme, launched to address chronic water shortages exacerbated by declining rainfall. Five consortia submitted bids, including a Franco-Algerian joint venture led by SUEZ Algérie and a Spanish-Algerian consortium led by Acciona Agua in partnership with state-owned engineering firm EPE-Cosider. The contract was awarded to the Spanish-Algerian consortium in April 2024.
The unsuccessful SUEZ-led consortium filed an emergency annulment application with the Administrative Tribunal of Algiers, alleging that three members of the five-person technical evaluation committee held undisclosed shareholdings in Cosider subsidiary companies, and that the technical scoring matrix had been revised after bid opening to downgrade the weight assigned to membrane technology experience — an area where SUEZ had a demonstrable advantage — while upgrading the weight assigned to local civil works capability. The Tribunal dismissed the application on the ground that the bidder had failed to exhaust the mandatory pre-litigation conciliation procedure under Article 165 of the Public Procurement Code. SUEZ appealed to the Council of State.
The Council of State identified three questions of principle: (1) Whether the pre-litigation conciliation requirement under Article 165 of the Public Procurement Code is a jurisdictional bar or merely an admissibility condition that can be waived when the applicant demonstrates risk of irreparable harm; (2) Whether conflicts of interest among evaluation committee members constitute a ground for annulment under Article 82 of Decree No. 15-247, and if so, what standard of proof applies; and (3) Whether post-bid revision of technical evaluation criteria violates the fundamental principles of transparency and equal treatment of bidders under Algerian administrative law, independently of any showing of bad faith.
The Council of State unanimously allowed the appeal, overturned the Tribunal's ruling, and annulled the procurement award in its entirety. The Court held:
(1) The Article 165 conciliation procedure is an admissibility condition, not a jurisdictional bar. Where the applicant demonstrates that the conciliation process cannot provide an effective remedy — here, because the construction timeline meant the contract would be substantially performed before conciliation concluded — the Council of State may exercise its annulment jurisdiction directly. The Court drew on the general principle of effective judicial protection under Article 160 of the Algerian Constitution.
(2) The presence of evaluation committee members with undisclosed financial interests in a bidding entity constituted a defect of such gravity that it vitiated the entire evaluation process, regardless of whether actual bias was proven. The Court imposed an objective standard: a reasonable observer, properly informed, would conclude there was a real possibility of bias. The undisclosed shareholdings met this standard.
(3) The post-hoc reweighting of technical criteria — changing the membrane technology weight from 30% to 15% and the local civil works weight from 20% to 35% after all bids were opened — constituted a breach of the principle of intangibilité des critères (immutability of evaluation criteria), which the Court elevated to a fundamental principle of Algerian public procurement law. The Court held that this principle is violated regardless of the procuring entity's motive; the mere fact of post-opening criteria revision is sufficient to annul the award.
This is the most significant public procurement ruling from Algeria's Council of State in over a decade, and the first to explicitly articulate an objective standard for conflicts of interest among evaluation committee members. The decision aligns Algerian administrative jurisprudence with the UNCITRAL Model Law on Public Procurement (2011) and the approach taken by the French Conseil d'État in cases such as SMIRGEOMES (2008) on the immutability of award criteria.
For the Algerian construction and infrastructure sector — which accounts for over DZD 1.2 trillion in annual public contracts — the ruling has immediate practical consequences. Contracting authorities must now institute formal conflict-of-interest declarations before evaluation committees convene, and must finalise all technical scoring criteria before bid opening with no subsequent amendment. Foreign bidders on Algerian infrastructure projects gained a powerful new enforcement tool: the ability to bypass the conciliation requirement where urgency is demonstrated. Practitioners in Algiers have already reported a surge in pre-emptive disclosure requests from procurement entities seeking to insulate tender processes from future challenge.
The ruling also has broader regional significance, as several Maghreb countries — including Tunisia and Morocco — have public procurement frameworks modelled on the French administrative law tradition and may look to this decision as persuasive authority in their own administrative courts.
"The integrity of the public procurement process is not a procedural luxury. It is the condition upon which the State's authority to spend public funds depends. Where the evaluation committee's impartiality is compromised, the award is null — not because the outcome was necessarily wrong, but because the process has been stripped of its legitimacy." — President of the Litigation Chamber, Council of State, Dr. Mohamed Larbi Belkacem