Class 4 is in the specifications, class 3 is not — but you cannot pull such a minimum threshold out of a hat
The Council of State suspends the award to Groenservice of the installation of an artificial-turf football pitch for the municipality of Anderlecht, because the municipality had excluded the lowest bidder BVBA MAB on the basis of an unpublished minimum threshold — references had to exceed €500,000 — that appeared nowhere in the specifications or the notice.
What happened?
On 25 June 2015 the municipality of Anderlecht launched an open tender for the installation of an artificial-turf football pitch. The specifications nr. 15-045 SPOR were published in the Bulletin of Procurement Notices on 3 July 2015. Four offers were submitted. BVBA MAB submitted the lowest offer, BVBA Groenservice the second lowest. What the notice said about selection: - Technical capacity: 'A list of works carried out over the last five years, accompanied by certificates...' (no minimum amount, no minimum number of works, no requirement of similarity) - Contractor accreditation: 'Class: class 4: up to €900,000, Category: G4' In the specifications (article I.5) the technical-capacity requirement was repeated word for word, and the accreditation was stated: 'G4 (specialised surfacing of sports fields), class 4'. On 2 October 2015 the award report was drawn up. It stated literally that MAB was excluded because its references showed: - 'No amount above €500,000' - 'No certificate above €500,000' On 10 November 2015 the College of the Mayor and Aldermen approved the award to Groenservice, with as motivation that MAB's references were 'not within €500,000 and €900,000, as required by the contractor accreditation class requested in the tender documents and the notice'. MAB only received the motivation by registered letter on 21 January 2016 and filed an extreme-urgency action on 2 February 2016. Its plea: the contracting authority had added a €500,000 minimum threshold to the selection requirements that appeared nowhere clearly in the specifications or notice. The implicit logic behind €500,000: this is the maximum amount a class 3 contractor may execute — so a class 4 contractor must be able to prove references above that. But that derived logic was nowhere stated. The municipality defended itself with the 'evidence' argument: the class 4 G4 accreditation requirement had to be read 'evidently' together with the requested reference list, and those references therefore had to be between €500,001 and €900,000, in line with the class 4 definition. Chamber President Dierk Verbiest disagreed. Three pillars supported the suspension: First pillar: article 58 § 1 2° of the Royal Decree of 15 July 2011 requires the contracting authority to specify the selection criteria and the required level so that they are proportionate to the contract object. Suitability requirements must be sufficiently clear so that a bidder can submit an offer with full knowledge. Second pillar: in the notice no minimum requirement was stated for technical capacity — apart from that works had to be carried out in the last five years and properly completed. No minimum number, no minimum amount, no similarity. The specifications confirmed this: only the class 4 G4 accreditation was linked to an amount — a maximum of €900,000, not a minimum. Third pillar: even if one accepted that bidders are presumed to know the accreditation rules — as the municipality implicitly claimed — the notice still refers to the maximum amount a class 4 contractor may execute (€900,000), not to any minimum. The €500,000 minimum threshold was in no way mentioned 'unambiguously, clearly, precisely and unambiguously' in the notice or the specifications. By suddenly applying a €500,000 minimum threshold per reference at the assessment stage, the municipality added a requirement to the qualitative selection that was not in the tender documents. This appears prima facie to breach article 58 of the Royal Decree, the patere legem principle, equal treatment, transparency and the duty to give substantive reasons. The plea was serious — more than enough to justify suspension. The Council suspended the award to Groenservice. The implicit decision not to award to MAB was however not expressly suspended: MAB had not shown that the seriousness of the plea automatically led to the conclusion that the authority had no choice but to award to her. Her offer had not even been substantively examined.
Why does this matter?
For contracting authorities this is a warning against the implicit link between accreditation class and reference amount. The accreditation regime determines what a contractor may execute, not what type of references he must produce. If you want references to have a minimum amount — which can be a legitimate selection criterion — write it literally in your specifications and notice: 'references for works with a value of at least €X'. Relying on an implicit derivation ('a project this size requires large references') is a ticking time bomb. For bid managers who are the lowest bidder but are nonetheless excluded on technical capacity: compare the exclusion motivation carefully with the wording of the specifications and the notice. Every requirement or threshold that appears in the exclusion motivation but is not in the tender documents is a ground for breach.
The lesson
As a contracting authority: write every selection threshold — minimum amount, minimum number of references, similarity, quality requirements — literally in the specifications and the notice. Do not expect bidders to derive the threshold from the accreditation class, since the class tells you what you may execute, not what you must demonstrate in your references. As a bid manager: were you excluded as the (lowest) bidder on the basis of a 'minimum amount' or 'minimum number' at the selection stage? Then look first for those exact words in the specifications and the notice. Not findable or not unambiguously stated? Then the motivation does not satisfy article 58 of the Royal Decree of 15 July 2011 and you have a ground for suspension on the patere legem principle.
Ask yourself
Take the award decision or the exclusion report in which a bidder was rejected on qualitative selection. Underline every quantitative requirement in the motivation (minimum amount, number of works, duration, comparability). Then open the specifications and the notice and try to find that exact requirement word for word. Not findable or only implicit (for example 'follows from the accreditation class')? Then the motivation is directly exposed to a suspension plea like the one in this case — based on article 58 of the Royal Decree, the principle of equal treatment and patere legem.
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 →