Accepting a 7-year-old town hall reference? Yes, as long as the final acceptance still falls within the three-year window
The Council of State rejects the extreme-urgency action by architectural firms Alinea Ter and Atelier de l'Arbre d'Or against the award by IDELUX of the project author contract for the Mardasson polyvalent hall in Bastogne, because the reference of the winning team — the Durbuy town hall from 2009 — remains acceptable as long as final acceptance (9 December 2012) falls within the three-year window of article 72, 7° of the Royal Decree of 15 July 2011.
What happened?
On 20 April 2015 the intermunicipal company IDELUX published in the Bulletin of Procurement Notices, and on 25 April 2015 in the Official Journal of the European Union, the notice for a service contract for a project author — architecture, stability and special techniques — for the construction of a polyvalent event hall on the Mardasson hill in Bastogne (the location of the American memorial for the Battle of the Bulge). The procedure was an open call for tenders with European publication. The fee was 8% of a capped estimate, adjusted downward based on the approved tender. The specifications described a polyvalent hall of approximately 1,000 to 1,200 m² as a 'reference centre' for congresses, forums and memorial tourism, with adjoining exhibition and office spaces, archives and a museum zone. Qualitative selection required references for each of three missions: - for architecture: (i) at least 'one project of the same nature: design of premises of large size intended for the public (with regard to flow management, security, acoustics, conviviality, …)' and (ii) 'one project of at least €1,000,000 in the last three years' - for stability: at least one project, regardless of the domain, with a stability works cost ≥ €200,000 excl. VAT in the last three years - for special techniques: a 'similar project' IDELUX awarded the contract on 17 December 2015 to the temporary association 'Mardasson – HQE' (SIA, Pierre Berger, Bureau de Stabilité Penelle-Goffaux and Bureau d'Études Goffaux). On 25 January 2016 Alinea Ter and Atelier de l'Arbre d'Or filed an extreme-urgency action. The single plea fell into three branches: First branch — lack of motivation of the selection assessment. The Council rejected: the offer-analysis report stated that 'the bidders meet the requirements', with a table listing 'OK' per bidder. The applicants did not point to any circumstance that on its own required more elaborate motivation. A positive selection decision without difficulties may be more concise than a decision excluding a bidder. Second branch — breach of article 72, 7° of the Royal Decree of 15 July 2011: the SIA reference (construction of the Durbuy town hall) was claimed to date from 2009 — seven years old — and therefore fell outside the three-year window. The applicants relied on a press article from Le Soir to argue that the works had been provisionally accepted in December 2011. The Council rejected: the file showed that provisional acceptance did indeed take place on 9 December 2011, but final acceptance was originally scheduled for 9 December 2012. Unless one wishes to deprive the double-acceptance system of all meaning, one may assume that SIA's architectural mission continued until at least 9 December 2012 — within the three-year window from the bid date. No manifest error of assessment. Third branch — the Durbuy reference is not a 'project of the same nature'. A town hall is not an event hall: visitor flows in a town hall are spread out (people come and go for administrative business) while an event hall sees concentrated peaks where acoustics, guided flows, security and conviviality matter. The Council did not follow this argument. The specifications required 'the design of premises of large size intended for the public (with regard to flow management, security, acoustics, conviviality, …)'. From this definition it does not follow that the previously designed premises had to have an identical or very similar destination and characteristics to those of the Mardasson hall. From the intervenors' offer it appeared that the project did indeed concern premises of large size for the public, with attention to flow, security and acoustics. No manifest error of assessment. For the stability mission the intervenors had moreover submitted references with construction costs between €894,243 excl. VAT and €1,179,749 excl. VAT — well above the €200,000 threshold. The claim that Mardasson Stabilité was unknown and therefore probably could not meet the threshold lacked factual basis. None of the three branches was serious. The action was rejected. The applicants were ordered jointly to pay a procedural indemnity of €700 (€350 each) and the other costs of €1,000 (€500 each). The confidentiality of the offers was maintained.
Why does this matter?
For bid managers who want to challenge an offer on the age of a reference: look beyond the project's start date. The Council counts the three-year window of article 72, 7° of the Royal Decree until final acceptance — not provisional acceptance. A 'seven-year-old' reference based on a press article can therefore remain perfectly acceptable if final acceptance took place two years after provisional. For contracting authorities this is a useful confirmation: a reference whose final acceptance falls within the three-year window is within the window — even if the project started much earlier. The judgment also confirms that 'project of the same nature' need not mean identical: the specifications define the scope of the similarity, and the Council only reviews marginally for manifest error. If you want a strict similarity requirement, you must write it in the specifications.
The lesson
As a bid manager wishing to challenge a reference on age: ask the contracting authority when final acceptance took place — not provisional. An investigation limited to press articles about provisional acceptance is insufficient to demonstrate a manifest error of assessment. As a bid manager wishing to challenge a reference on its nature: read the exact wording of the specifications carefully. 'Project of the same nature' is interpreted broadly by the Council; only when the specifications explicitly say 'identical' or 'similar in destination' can you enforce strict similarity. As a contracting authority: do you want a specific destination (event hall, hospital, school) as a reference requirement? Write it explicitly in the specifications, otherwise the Council will accept a broad interpretation.
Ask yourself
Take an award decision where you want to challenge the age of a winning reference. Can you prove — not via a press article but via an acceptance certificate, minutes or an explicit mention in the offer itself — that final acceptance fell outside the three-year window? If not, the marginal review by the Council favours the contracting authority. As for the similarity requirement: do the specifications contain concrete characteristics (surface, type of public, technical requirements), or only a general formula like 'project of the same nature'? With a general formula, your chances of suspension are slim.
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 →