Demand five references, then waive them for two bidders: Grimbergen loses the Humbeek athletics track over one missing explanation
The design consultant ranked Sportinfrabouw first with 108.4 points, but the municipal executive of Grimbergen read a minimum of five compliant references into its own award criterion, gave both Sportinfrabouw and the Krinkels joint venture zero points on it, and thereby awarded the resurfacing of the Humbeek athletics track to Krinkels after all; the Council of State suspends that selection and award decision under extreme urgency, because the municipality departed, in favour of two bidders, from a selection criterion in its own tender documents and nowhere explained which of Sportinfrabouw’s nine consultant-assessed references it rejected, or why.
What happened?
The municipality of Grimbergen launched an open call for tenders for the resurfacing of the athletics track in Humbeek, estimated at 821,211.63 euros including VAT and published on 5 May 2011 in the Belgian tender bulletin. Under article 19, the tender documents required ‘certificates of satisfactory execution for five similarly executed and accepted projects carried out in the last 3 years’, signed by the client, showing that the bidder had performed the works itself as main contractor and that those works comprised a 400-metre athletics track with a synthetic top layer and a drainage gutter on the inside of the track. Article 115 set five award criteria: tender price on 60 points, technical quality of the file on 30, maintenance guidelines on 5, warranty provisions on 5 and planning on 15. The second award criterion was worded identically to the selection criterion, with scoring ‘in descending order from the most extensive compliant reference list, starting at 30 points and descending proportionally’. Three tenders were opened on 14 June 2011: Sportinfrabouw, the Krinkels Landscape – Krinkels – Polytan Sportstättenbau joint venture, and Lesuco. The safety coordinator advised declaring Lesuco’s tender substantially irregular under the royal decree of 25 January 2001 on temporary or mobile construction sites. The design consultant, Groep Infrabo, then scored the references item by item in an annex: one point for an athletics track, one for a synthetic top layer, a quarter point for 400 metres, a quarter for the inner gutter and half a point for a statement of full satisfaction. Krinkels obtained 7 raw points out of 30 with three references — Turkey, Ontario and Texas — converted to 10.77; Sportinfrabouw obtained 19.5 raw points with nine references, converted to the maximum 30. In the final table Sportinfrabouw reached 108.4 points, Krinkels 95.77 and Lesuco 69.07. The consultant proposed awarding to Sportinfrabouw for 891,655.78 euros. The municipal executive decided otherwise on 27 September 2011. It first excluded Lesuco’s tender, then quoted the second award criterion and held that the provision ‘indisputably assumes a minimum, meaning that at least 5 compliant references must be submitted’, that neither Krinkels nor Sportinfrabouw met that minimum, and that it was ‘therefore appropriate to award no points to either firm on this criterion’. Without Sportinfrabouw’s 30 points the ranking flipped: the contract went to Krinkels, at the verified tender amount of 819,921.75 euros including VAT. Sportinfrabouw and Lesuco were told on 26 October 2011, with the notice that the contract would be concluded within fifteen days ‘in accordance with article 65/11’. Krinkels received a letter on 31 October with no standstill period at all, asking for a performance bond within thirty days. A purchase order had already been drawn up and a coordination meeting scheduled for 28 November. On 10 November 2011 Sportinfrabouw brought its action for suspension under extreme urgency; the case was heard on 24 November. The Council first clears away three objections. The municipality argued that Sportinfrabouw had no standing because it should have been excluded for false declarations: four certificates — Herve, Saint-Vith, Hulshout and Aalst — carried a handwritten, uninitialled line about the inner gutter, and in one case about the synthetic top layer, which was absent from the originals. The Council accepts that Sportinfrabouw added those lines, but the municipality does not show that they are ‘false’ in the sense of misrepresenting the works performed, and it overlooks both the discretionary nature of the ground for exclusion and the required seriousness. The intervening parties argued that suspension was impossible: the contract was below the European threshold, no standstill applied, and with the notification of 31 October the contract had been concluded, so that article 65/30, third paragraph, bars any suspension. The Council observes that the purpose of that objection remains unclear and that in summary proceedings it will rather reject an objection than accept it, unless it displays a high degree of seriousness. For completeness: by ‘review body’ the legislature appears to have meant the ordinary court, and the provision appears to concern the contract, not the separable award decision preceding it. A passed-over bidder moreover retains a qualified moral interest that survives the conclusion and even the performance of the contract. And the Council adds drily that any problems arising after a suspension are the municipality’s own doing, since it chose to observe no standstill period. On the conditions for suspension the Council is brief: article 65/15, first paragraph, of the law of 24 December 1993 — inserted by the law of 23 December 2009 — requires no risk of serious harm difficult to repair for the suspension of an award decision, while the second paragraph obliges the applicant to use the extreme-urgency procedure, and article 65/31 extends this to below-threshold contracts. All that remains is whether a serious plea is raised. It is, on two tracks. First, the departure from the tender documents. The contested decision assumes that none of the three bidders submitted the required five references, and yet Krinkels and Sportinfrabouw — unlike Lesuco — were selected. In its note the municipality explained that they had at least produced certificates for similar contracts less than three years old, and that the requirement of five references had proved too strict because only one or two athletics tracks are built in Belgium each year. The Council points out that this is not concretely demonstrated and that the tender documents did not limit references to Belgium at all — the intervening parties in fact produced only foreign references. The municipality thus departed, in favour of two bidders, from a selection criterion in its own tender documents. Since no party disputes the validity of that criterion, and the Council can hardly be expected to assess the tenders against it itself in extreme-urgency proceedings, it holds that a fresh contract with adjusted selection criteria is the appropriate course. The reason is fundamental: it cannot be excluded that other interested undertakings did not bid precisely because of the five-reference requirement, and would have bid under a less strict one. On that hypothesis the intervening parties were wrongly selected and the contract wrongly awarded to them. That Sportinfrabouw too was then wrongly selected does not deprive it of standing: the contract could be awarded to no one, and a fresh procedure gives it a fresh chance. Second, the failure to state reasons. Assessing the references is primarily for the contracting authority, which enjoys a degree of discretion. But the contested decision simply states that Sportinfrabouw did not submit the required five compliant references, without indicating which of the nine references assessed by the consultant it accepted and which it rejected, let alone why. Nor can that be deduced from its note, and at the hearing the municipality acknowledged that the file does not show it. The Council therefore cannot review the lawfulness of that assessment, and cannot make it in the municipality’s place. On that ground too the award decision must be suspended — regardless of whether the intervening parties could be selected. The Council does not pursue the complaint that zero points for everyone conflicts with the degressive scoring method prescribed in the tender documents, and it expressly leaves open ‘possible further questions that may arise concerning the use of bidders’ references as an award criterion’. The Council admits the intervention and orders the suspension, under extreme urgency, of the decision of 27 September 2011 selecting the Krinkels joint venture and awarding the contract to it. The action is dismissed for the remainder: Lesuco’s ‘selection’ was in fact a non-selection, so the action is without object on that point, and there is as yet no reason also to suspend expressly the implied decision not to award to Sportinfrabouw, which does not show what additional benefit that would bring. The intervening parties bear the costs of their intervention, set at 375 euros, one third each.
Why does this matter?
This judgment is a textbook illustration of what goes wrong when a contracting authority writes its own tender documents too strictly and then tries to fix that halfway through. Grimbergen demanded five certificates of satisfactory execution for a 400-metre track with a synthetic top layer and an inner gutter, completed within the last three years. When it turned out that nobody met that bar — only one or two athletics tracks are built in Belgium each year, as the municipality itself said — it took the pragmatic way out: select two of the three bidders anyway and give both of them zero points on the criterion concerned. Pragmatic, but unlawful. The Council’s decisive argument is not about the two remaining bidders but about who was not at the table: it cannot be excluded that other undertakings refrained from bidding precisely because of the five-reference requirement, and would have bid under a softer one. Relaxing a selection criterion after the opening of tenders is therefore not a correction but a retrospective distortion of competition. The only clean way out is a fresh contract with adjusted criteria. The case also shows how heavily the duty to state reasons weighs once an authority departs from its consultant. Groep Infrabo had scored each of Sportinfrabouw’s nine references in an annex worked out to the quarter point. The executive set one sentence against that — that the required five compliant references had not been submitted — without saying which references it rejected or why. An authority may depart from its consultant’s award report; that report is advice, not a decision. But the further it departs, the more explanation it owes, and here the municipality itself conceded at the hearing that the answer was not in the file. The consequence is not that the Council redoes the assessment — it expressly refuses to — but that it cannot review its lawfulness, and that suffices for suspension. There is a procedural lesson too, still valid today. Grimbergen reasoned that it was below the European threshold, so owed no standstill, so had already concluded the contract, so was out of reach. That reasoning does not hold: the bar on suspending a concluded below-threshold contract is addressed to the ordinary court and to the contract, not to the Council of State and the separable award decision. Skipping the standstill buys no immunity — at most it buys the risk of being left with a signed contract and a purchase order when a suspension lands. The Council says so plainly: that is then the authority’s own choice. Finally, the judgment visibly leaves two things open. The Council does not address the complaint that zero points for everyone conflicts in any event with the degressive scoring method in the tender documents, and it expressly mentions ‘possible further questions concerning the use of bidders’ references as an award criterion’. That last point is the elephant in the room: the second award criterion was worded identically to the selection criterion. References measure who the bidder is; award criteria should measure what it offers. The Council did not have to decide the point here, but the signal is clear enough. What also came back to bite: Sportinfrabouw had added a handwritten line to four certificates that was absent from the originals. It survived the objections — the municipality did not show the additions were untrue, and the ground for exclusion is discretionary and requires seriousness — but it cost a round of procedural combat it would not have had to fight without those annotations.
The lesson
If you are a contracting authority, write your selection criteria at a level the market can actually meet. Five certificates for a 400-metre track with synthetic top layer and inner gutter, delivered within three years, is not selection but exclusion in a market that builds one or two tracks a year. If you discover after opening that nobody qualifies, do not quietly relax the bar for those who remain: relaunch the contract with adjusted criteria. Lowering the bar afterwards harms the undertakings that decided not to bid on the basis of the original bar — and that argument is fatal. Use references at the selection stage rather than as an award criterion: reproducing the criterion word for word at the award stage raises a question the Council here expressly leaves open. If you depart from your consultant’s award report, state reference by reference which ones you accept, which you reject and why; a single sentence that ‘the minimum was not met’, set against an annex worked out to the quarter point, will not hold. Finally, follow the scoring method you prescribed yourself, and do not count on skipping the standstill as protection: it does not make the award decision untouchable and it puts the risk of a post-conclusion suspension on you. If you are a bidder, check whether the tender documents use a reference requirement twice — as selection and as award criterion — and ask for clarification before submitting when the requirement looks unattainable. If you see a competitor selected although it does not meet the published criterion, that is a serious plea even if you do not meet it either: the contract could then be awarded to no one, and a fresh procedure gives you a fresh chance. Always ask for the full award report including its annexes — Grimbergen sent the report ‘apparently without the annexes’ — because the gap between advice and decision is exactly where your plea lies. And never touch a certificate of satisfactory execution after the client has signed it: have any missing wording added and initialled by the client itself.
Ask yourself
Do you know how many undertakings in your market could realistically meet your reference requirement, or did you pick a number that sounded right? Do you use the same reference requirement both at selection and at award, and do you realise that award criteria should measure what is offered, not who is offering? If no bidder meets your criterion, do you relax it for those who remain, or relaunch — and have you considered who did not bid because of the original requirement? Are you departing from your consultant’s report, and if so, does your decision say which references you reject and why? Does your scoring follow the method you imposed in the tender documents? And as a bidder: have you requested the award report with all its annexes, and are your certificates of satisfactory execution exactly as the client signed them?
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The Council of State (Raad van State / Conseil d'État) is Belgium's supreme administrative court. In disputes over public procurement — from contract awards to tenderer exclusions — the Council of State is the final arbiter. The rulings in this database are summarised by TenderWolf in plain language, with practical lessons for tenderers and contracting authorities. View all rulings →