A sworn declaration contradicted by the criminal record: why Liège could bar Voyages Raoul from school transport
The manager of Voyages Raoul signed, for a school-transport contract of the city of Liège, a sworn declaration that he was in none of the exclusion situations, while his criminal record showed six convictions between 2008 and 2010 — including for lack of roadworthiness testing and lack of insurance — and the Council of State upheld the exclusion: the city was entitled to treat those convictions as affecting professional integrity where the safety of schoolchildren is at stake.
What happened?
On 31 December 2010 the municipal college of Liège excluded Voyages Raoul at the qualitative-selection stage from a public contract for school transport and transport of persons with reduced mobility, and awarded the contract to Eurobussing Wallonie. The reason: Voyages Raoul’s manager, Mr Sprimont, had signed a sworn declaration that he was in none of the exclusion situations of article 69 of the Royal Decree of 8 January 1996, while the extract from his criminal record showed the opposite. Between 6 August 2008 and 8 March 2010 he had incurred three police-court penalties and three correctional convictions, covering almost the full range of traffic offences except drink-driving: speeding, illegal parking, lack of roadworthiness testing, lack of vehicle insurance, phoning at the wheel. In addition there were two far older correctional convictions, from the 1980s and 1990s, for bad cheques. Voyages Raoul challenged the exclusion on three pleas. First: the city had broken with its own settled practice, since in 2010 Voyages Raoul had bid dozens of times in negotiated procedures of the same city for the same subject matter — transporting children — without the morality condition ever posing a problem and without a single performance issue. The Council of State disagreed: article 68 of the Royal Decree obliges the authority to carry out a qualitative selection in an open adjudication, but in a negotiated procedure without publication that is an option, not a duty. In those earlier procedures the city had either included no exclusion clause or confined itself to a sworn declaration — and Voyages Raoul did not show that it had ever supplied its manager’s criminal record. The city therefore did not know of the convictions; on the contrary, on the basis of the sworn declarations it was entitled to assume there were none. There could be no question of a departure from a settled practice. Second: the decision was said to be wrongly reasoned, since article 69, § 2 merely gives the authority the option to exclude, whereas the city had written that it was ‘imperative’ to set the bidder aside. The Council found that the reasons and the file showed the city had not mistaken the discretionary nature of its power: it considered that, given the nature of the convictions, it had to exclude. Third: the exclusion was said to be disproportionate and to breach the right to work in article 23 of the Constitution, since the manager never drives a coach himself — professional drivers employed by the company do. That too failed, for a reason that says everything about building a file: Voyages Raoul’s tender nowhere stated that the contract would be performed by other persons, and the only criminal-record extract annexed was the manager’s. The city was therefore entitled to assume he would perform the contract, and that convictions for missing roadworthiness testing and missing insurance affect his professional integrity. That assessment, grounded in the need to guarantee children’s safety during school transport, is in no way disproportionate — and it concerns this contract alone, prejudging nothing about future procedures, whether at Liège or elsewhere. The action was dismissed; Voyages Raoul pays 350 euros in costs.
Why does this matter?
The sworn declaration is an instrument of trust in procurement law, and this judgment shows what happens when that trust is betrayed. A bidder who signs that it is in no exclusion situation while its criminal record says otherwise loses not only the contract but every argument resting on the authority’s good faith. The judgment also refutes a line of reasoning many bidders find tempting: ‘you accepted me dozens of times before, so you cannot refuse me now.’ That does not hold where those earlier contracts ran through negotiated procedures without publication, in which qualitative selection is optional, and still less where the authority did not then hold the information it holds now. A settled practice presupposes that the authority knew what it was deciding. Finally, the Council pins down what professional integrity concretely means: not an abstract moral judgment, but whether the convictions touch the performance of this particular contract. Bad cheques from the 1980s mattered little; missing roadworthiness tests and missing insurance for a carrier of schoolchildren mattered a great deal — with the additional, very practical consideration that insurers could turn against the city in the event of an accident.
The lesson
Never sign a sworn declaration you cannot defend with your criminal record in hand. If you believe old or minor convictions do not affect your professional integrity, disclose them and explain why — that is a defensible position; concealment is not, because the authority will find out anyway and you instantly lose all credit. Build your tender so that it supports your own story: if the manager never drives, state in the tender who will physically perform the contract and annex those persons’ criminal records. Voyages Raoul foundered on exactly that — it argued at the hearing that its manager does not drive coaches, but nothing in its tender said so. And do not count on a string of smoothly performed earlier contracts: in negotiated procedures without publication qualitative selection is optional, so those precedents do not bind the authority in an open adjudication. For contracting authorities: exclusion for professional integrity is a power, not a duty — so reason concretely what link you see between the convictions and the performance of this contract. ‘Missing roadworthiness testing for a carrier of schoolchildren’ is such a link; a general reference to the criminal record is not.
Ask yourself
Can you defend your sworn declaration with your directors’ criminal records in hand — or are you betting nobody will ask for them? If you believe a conviction does not affect your professional integrity, have you disclosed and explained it rather than concealed it? Does your tender state who will physically perform the contract, with the corresponding certificates, where that is not the manager? Do you realise that earlier awards through negotiated procedures without publication create no settled practice binding the authority in an open adjudication? And as a contracting authority: do you reason the concrete link between the convictions and the subject matter of this contract, and do you appreciate that exclusion is a discretionary power and not an automatism?
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 →