A nearly 27.5-million-euro biomethanisation plant, contested references and a spontaneous note: why CFE's case against Intradel foundered in interim relief
The temporary grouping CFE – Vinci Environnement – Cegelec challenged, under extreme urgency, Intradel's award of a nearly 27.5-million-euro contract to build a biomethanisation plant at Grâce-Hollogne to the Strabag grouping, but the Council of State held that none of the pleas — on Strabag's references, a spontaneously filed explanatory note and a series of technical disputes — reached the required prima facie seriousness, and rejected the suspension application.
What happened?
The inter-municipal waste company Intradel launched, by European call for tenders, contract 10/24/INT for the design and construction of an organic-waste biomethanisation unit (UBDO) with post-treatment of the digestate, at the Liège Airport site in Grâce-Hollogne. Four candidates bid, opened on 29 May 2012. After an award report of 24 October 2013, Intradel's board decided on 28 November 2013 to award the contract to the Strabag Belgium and Strabag Umweltanlagen grouping, for 299,000 euros (phase 1), 19,978,386 euros (phase 2.1), 3,438,244 euros (phase 2.2) and 3,758,022 euros (option 1), all excluding VAT. The reasoned decision was communicated to the applicants on 2 December 2013; they filed a suspension application under extreme urgency on 16 December 2013 and an annulment action on 30 January 2014. The Council of State first admitted the intervention of Strabag, the contract's beneficiary. In a first plea the applicants contested Strabag's qualitative selection: the specification required at least two references of biomethanisation units (UBDO) with an annual capacity above 20,000 tonnes of household biowaste, built and commissioned by the bidder and supported by certificates of good execution, plus at least one reference for a digestate-dewatering unit. They attacked the Hoppstädten reference (partly built in 2002, thus over ten years old) and the Lille Sequedin one (where the contract was terminated at the group's fault in 2009), and doubted whether a certificate existed for the dewatering unit. The Council rejected that plea: for Hoppstädten the 20,000-tonnes-per-year capacity had been operational since 2008, thus within the reference period; the fact that a dispute arose after the certificate of good execution was issued does not make that certificate disappear, all the more since that dispute was still pending; and the certificate for the dewatering unit was indeed in the administrative file. In a second plea the applicants noted that Strabag had dated the ‘express note’ on operating performance — required by the specification — 29 May 2012, the day of the opening at 11 a.m., but had only sent it the next day by email, confirmed by registered letter of 1 June 2012. The Council held that the specification did not impose that note on pain of nullity, that Strabag had filed it spontaneously and that, as shown by a table drawn up at the auditor's request, it did not alter the original bid: it was a synthesis of elements already in the bid, or clarifications the authority could have requested under article 115, sixth paragraph, of the Royal Decree of 8 January 1996; only two clarifications were scored (-2 and +2), so the effect on the ranking was nil. Intradel had, moreover, made ample use of article 115 to have all bids clarified. The second plea was not serious. In third and fourth pleas the applicants raised a series of technical objections — on the recoverability of the mulch, the sizing of the reception hall and the crusher, the methanisation technique, effluent management, biogas production and civil-engineering works. The Council repeated that the extreme-urgency procedure, which leads to a provisional decision, can rest only on what appears at first sight and obviously from the file, and that a plea requiring an in-depth, highly technical analysis of the bids and the specification does not lend itself to it. Point by point it found Intradel's rebuttal prima facie plausible and saw no manifest error of assessment. The Council concluded that no plea was serious, rejected the suspension application under extreme urgency, maintained the confidentiality of the bids and of certain documents, and reserved the costs.
Why does this matter?
Large infrastructure contracts are often attacked on the winner's qualitative selection and on the technical assessment of the bids — and this judgment sharply marks the limits of what that achieves in interim relief. Two findings are broadly useful. First, on references: a certificate of good execution remains valid even if a dispute later arises about the contract concerned; a competitor seeking to knock a rival out of the selection cannot rely merely on a later dispute, especially while it is still pending. And a reference stays within the period as long as the required capacity became operational within it, even if construction began earlier. Second, on documents surfacing after the opening: a document the bidder files spontaneously and that does not alter the bid — a synthesis or a clarification the authority could have requested under article 115 — does not breach equality, especially where it has no or negligible effect on the ranking. The third lesson is one of process economy: mainly technical pleas requiring an in-depth expert examination rarely clear the prima facie threshold of extreme urgency. Those who truly want such objections assessed are usually better served by the annulment action on the merits than by interim relief.
The lesson
If, as a rejected bidder, you want to challenge the winner's qualitative selection, build more than a suspicion. A certificate of good execution does not lose its value through a later — let alone a still pending — dispute, and a reference counts as long as the required capacity became operational within the period. To attack a document filed after the opening, show that it substantively alters the bid or confers a concrete advantage; a spontaneous synthesis or an article 115 clarification is not enough as a grievance. And weigh your forum: purely technical objections requiring thorough expertise are rarely serious in an extreme-urgency procedure and belong rather in the action on the merits. As the authority, this judgment confirms the room to use clarification requests (article 115) to have all bids clarified on an equal footing and to accept references based on certificates that are not undone by a later dispute — provided you carefully document that approach in the award report.
Ask yourself
Do you know that a certificate of good execution remains valid even if a dispute later arises about the contract concerned, especially while that dispute is still pending? Do you realise that a reference falls within the period once the required capacity became operational within it, regardless of the year construction began? If you challenge a document filed after the opening, can you show that it alters the bid or confers an advantage — and is not merely a permitted clarification under article 115? And have you chosen the right forum: does your technical criticism lend itself to a prima facie examination in interim relief, or does it require the thorough expertise that only the action on the merits allows?
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 →