Green maintenance of the Park of Tervuren: the Buildings Agency was entitled to read the winner’s references broadly
The company Krinkels challenged the Buildings Agency’s award — worth 3,932,360 euros — of the green maintenance of the French Garden and park at the Royal Museum for Central Africa in Tervuren to Estate and Landscape Management, but the Council of State held that the authority could reasonably interpret the specification’s requirement of references about ‘parks’ and about ‘one contract’ of at least 300,000 euros, and dismissed the action.
What happened?
The Buildings Agency launched an open tender for the maintenance of the French Garden, the park and the plantings at the Royal Museum for Central Africa and the Colonies Palace in Tervuren (specification no. 08/21.0705/178D), with an estimated value of 3,932,360 euros excluding VAT. On pain of nullity, the specification required references for ‘green maintenance’ in ‘parks’: either two contracts of at least 300,000 euros, or one contract of at least 600,000 euros, performed in the three years before publication. Five bidders tendered. The lowest, Brankaer (3,107,865.42 euros), was set aside after a price review for abnormal prices; then came Estate and Landscape Management (3,645,579.06 euros) and Interplant, the legal predecessor of Krinkels (3,755,912.26 euros). After two suspension judgments under extreme urgency (nos. 189.133 and 189.135 of 23 December 2008) the Agency withdrew its first award and re-examined the offers, drawing up a new award report on 23 June 2009 and awarding the contract to Estate and Landscape Management on 30 July 2009. Interplant sought annulment, arguing that the winner’s two accepted references — Brussels Expo and Truman Hall — did not meet the specification: Brussels Expo would not be a ‘park’ but a paved area, and the 405,440-euro figure would merely be an addition of small yearly contracts; the Truman Hall reference would fall below the 300,000-euro threshold and rested on a 37- rather than 36-month overview. The Council of State did not follow this. The photographs did not show that Brussels Expo was not a park within the meaning of the specification — which in fact expressly allows paving up to 25% of the services. The specification uses the terms ‘contract’ and ‘assignment’ interchangeably, so it did not exclude that successive, year-on-year renewed contracts for the same park together reached the required 300,000 euros; the purpose of the reference requirement is to prove the technical capacity to perform a large contract, not the formal shape of the contract. Interplant’s self-made table did not suffice to undermine the Truman Hall reference, and one extra day in May 2005 or May 2008 did not prevent counting the full monthly invoice. The complaint that another bidder, ABOG, had been assessed more strictly was of no avail: ABOG was more expensive, so its selection would not have changed the outcome. The authority had stayed within its margin of appraisal; the sole plea was unfounded and the action dismissed. Interplant was ordered to pay 175 euros in costs and the intervening party 125 euros.
Why does this matter?
Reference requirements are the hinge of qualitative selection: they decide who is deemed technically capable of handling a large contract. This judgment shows how the Council of State reads them. Where the specification speaks of ‘one contract’ or ‘two contracts’ of a given amount, what matters is not primarily the formal legal packaging, but whether the bidder delivered the same kind of services for the required value within the reference period — if need be through a yearly contract that was repeatedly renewed. Equally important is the burden of proof: whoever challenges the award must show that the authority exceeded its margin of appraisal. A set of photographs or a home-made invoice table does not suffice when the beneficiary counters with a coherent history of invoicing and contracts. And even a valid grievance can founder on interest: that the authority may have judged a more expensive competitor (ABOG) too strictly could not unsettle the award, because a correct assessment of that competitor would not have led to a different choice.
The lesson
If, as an authority, you want to avoid disputes over references, define crystal-clearly what you mean by a ‘contract’ and by the required threshold, and whether successive or renewed yearly contracts for the same assignment may be added together — because if you use ‘contract’ and ‘assignment’ interchangeably, that will be read broadly in your favour. As an unsuccessful bidder, do not merely argue that the winner’s references look dubious to you, but prove concretely that they fall below the specification’s threshold; a home-made table against a full invoice history does not convince. And remember that a grievance leads to annulment only if it affects your own chances: a complaint about the too-lenient assessment of a competitor who was more expensive than you gains nothing.
Ask yourself
Have you unambiguously stated in your specification whether a reference must be a single contract or whether yearly contracts and renewals for the same assignment may be added together? Do you use the terms ‘contract’ and ‘assignment’ consistently, or do you leave room for a broad reading? If you challenge an award on the basis of the winner’s references, do you have hard evidence (invoices, contracts, certificates) showing the threshold was not met, or do you rely on your own reconstructions? And have you checked whether your grievance can really change your own ranking — or does it concern a competitor whose situation does not affect the outcome?
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 →