A 2006 conviction used to exclude in 2015 — while the same contracting authority awarded in 2011
Flemish Waterway authority W&Z excludes Heyrman-De Roeck on the basis of a nine-year-old environmental conviction, but fails to explain in its award report why the same conviction was not a problem in 2011 — the Council of State suspends the exclusion for inadequate reasoning.
What happened?
On 3 September 2015, the Flemish waterway authority W&Z publishes an open call for tenders to remove floating wood and washed-up objects at locks, weirs, embankments and flood control areas along the Nete river (specifications 16EI/15/26). Seven companies bid. Heyrman-De Roeck submits the lowest offer: €560,425 excluding VAT. Artes-Roegiers comes second at €573,880 — a gap of just over €13,000. The award report of 13 November 2015 finds that Heyrman-De Roeck 'has not demonstrated that it is not in an exclusion situation'. The reason: its criminal record extract mentions a conviction by the Ghent criminal court of 12 December 2006 for 'waste: abandonment/removal' and 'nature conservation' — a €1,000 fine (x5.5 = €5,500), of which €750 suspended. The contracting authority applies article 61, §2 of the Royal Decree of 15 July 2011 — a discretionary exclusion ground. Motivation: 'Given the high relevance of the breached legal provisions to the performance of this contract, which consists precisely in removing waste correctly, the contracting authority decides to exclude Heyrman-De Roeck.' The contract goes to Artes-Roegiers. Heyrman-De Roeck turns to the Council of State. The Council dissects the motivation and finds two gaps: how, in 2015, can there still be doubt about a company's integrity and reliability based on a conviction nearly nine years old? And: in 2011, W&Z awarded two similar contracts (16/EI/11/03 and 16/EI/11/04) to Heyrman-De Roeck on the basis of a criminal record carrying the same conviction, and those contracts ran without problems. Not a word about this in the 2015 award decision. In its court brief, W&Z tries to explain — a different case officer, no self-cleaning measures from the bidder — but that is post-hoc reasoning and cannot rescue the contested decision. The Council finds the motivation inadequate within the meaning of the 29 July 1991 Act. The exclusion is suspended, and with it the subsequent award to Artes-Roegiers.
Why does this matter?
Discretionary exclusion grounds are exactly that: discretionary. The contracting authority actively decides to use them, and must justify that decision. Not abstractly ('environmental crime is serious'), but concretely: why in this case, with this bidder, after this lapse of time. For bid managers this is a lever: if you carry an old conviction, you can work on self-cleaning (internal measures, certificates, training) and add a proactive note to your bid explaining the context. The judgment also gives you ammunition after the fact: if the exclusion doesn't explain why this year and not earlier, the reasoning is fragile. For contracting authorities, the lesson is harsh: discretionary exclusion must be really motivated — by passage of time, relevance to this specific contract, and consistency with earlier decisions.
The lesson
If you intend to exclude discretionarily based on a prior conviction, write three things in your award report: (1) why this conviction is still relevant today for the performance of this contract, (2) what time has passed and why that doesn't change the assessment, and (3) whether you previously awarded the same bidder on the basis of the same criminal record — and if so, what is different now. Skip these and the Council will strike down the motivation regardless of how defensible the substantive decision looks. As a bid manager with an old conviction on your record: proactively attach a note to your bid setting out the facts, the time passed and the measures you have since taken — that forces the contracting authority to motivate concretely why they nonetheless exclude.
Ask yourself
In your most recent exclusion under article 61, §2: can you justify in three sentences why the conviction still weighs today, how you took account of the passage of time, and whether in an earlier file you accepted the same bidder?
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 →