Liège demands a ‘plastering’ licence for acoustic suspended ceilings and strikes out the winner: the Council of State annuls the name swap
The city of Liège first awarded the renovation of the suspended ceilings of the judicial brigade to Sogepar (129,490 euros excluding VAT), withdrew that award because Sogepar lacked a class D11 contractor licence, and finally simply replaced Sogepar's name with that of Batis Construct in the original award decision — but the Council of State annuls the substitution because the required category D11 (plastering and rendering) was manifestly the wrong one: acoustic suspended ceilings on a metal grid are D4 works, and Sogepar held precisely that licence.
What happened?
On 29 June 2009 the municipal council of Liège adopted the tender documents for replacing the suspended ceilings, lighting and fire detection in the judicial brigade, with as selection requirement a contractor licence in category D11 (plastering and rendering). Five bidders submitted tenders. After the exclusion of Top Travaux for abnormal prices, Sogepar was the lowest regular bidder at 129,490 euros excluding VAT, and the college awarded it the contract on 24 December 2009. Three months later, on 25 March 2010, the college withdrew that decision: Sogepar did not hold the requested D11 licence (it held D4 and D5), so the contract went to Batis Construct, the next lowest. On 8 July 2010 came a third decision, ‘doubtless for reasons of municipal accounting’: the college withdrew the 25 March decision and simply replaced the name Sogepar with Batis Construct in the original award decision of 24 December 2009. Sogepar challenged that name swap. The Council of State first secured admissibility: a bidder who did not challenge the tender documents in time may still invoke their illegality against later decisions in the procedure (settled case law since judgment no. 152.173 of the general assembly), and the fax notification of 4 October 2010 moreover mentioned no remedies. On the merits the case was clear: the specification — rock-wool panels on a visible grid of metal rails, with strong sound absorption — corresponds ‘without hesitation’ to category D4 (acoustic and thermal insulation, light partitions, suspended ceilings) and not to D11. Because the installation works represented more than half of the contract value, the D4 licence also covered the lighting and fire detection. The city's defences failed across the board: article 98 of the Royal Decree of 8 January 1996 only obliges bidders to report errors that make pricing or comparing tenders impossible, not errors in the licensing requirement; the principles of equality and transparency cannot serve to cover an illegality that itself distorted competition by excluding properly licensed contractors; and the argument that Sogepar had not attached the D11 certificate to its tender could no longer be raised before the Council because the decision did not rest on it. The margin of appreciation in classifying works under the licensing categories is ‘particularly narrow’ given the extremely concrete definitions of the Ministerial Decree of 27 September 1991 — the error was thus manifest. Annulment, with 175 euros in costs for the city.
Why does this matter?
The judgment sharpens three principles that remain as relevant today as in 2012. One: the choice of licensing category is not a free policy choice. The categories of the Ministerial Decree of 27 September 1991 are defined so concretely that the authority has hardly any margin — whoever files acoustic suspended ceilings under ‘plastering and rendering’ commits a manifest error of assessment that vitiates the entire selection. Two: the duty to report errors in tender documents is no cure-all for the authority. It covers errors that make pricing or comparison impossible, not a wrong licensing requirement — a bidder who simply submits with its correct D4 licence does not forfeit its rights. Three: before the Council of State an authority is bound by the reasons of its own decision. The missing D11 certificate could have been a ground for exclusion, but since the decision did not rest on it, the city could not invoke it afterwards. On top of that, the judgment confirms the settled line that illegalities in tender documents remain invocable against every later decision in the procedure, and the curious ‘name swap’ construction — an award decision in which another contractor is simply written in — shows how creative accounting solutions run aground legally.
The lesson
For contracting authorities: let the technical description of the works determine the licensing category, not the other way round. Put the specification next to the definitions of the Ministerial Decree of 27 September 1991 and document that check — for suspended ceilings, insulation or light partitions D4 is the rule, and for mixed contracts the centre of gravity of the value decides. Base your decisions, moreover, on all the reasons you may want to invoke: what is not in the decision does not exist for the Council of State. And do not solve an award problem with a name swap in an old decision; redo the procedure properly. For bidders: if you hold the licence that objectively fits the works but not the one the tender documents wrongly demand, you are stronger than you think — the duty to report errors does not cover that situation, and you can still challenge the wrong requirement when you are excluded. Also check every notification for the mention of remedies and time limits; if they are missing, the time limit does not start to run.
Ask yourself
As a contracting authority, do you systematically check the requested licensing category against the concrete definitions of the Ministerial Decree of 27 September 1991, and against the centre of gravity of the contract value for mixed works? Are all the grounds for exclusion or rejection you may ever want to invoke actually stated in your reasoned decision? As a bidder, do you know that a wrong licensing requirement in the tender documents can still be challenged against the later award or rejection decision, even if you never challenged the documents themselves? And do you realise that the duty to report errors only concerns errors that make pricing or comparing tenders impossible?
About this database
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 →