What was first 'insufficient' cannot suddenly become 'satisfactory' without explanation — in the absence of both a minimum threshold and a reasoned assessment, the selection collapses
The Council of State suspends the award of the design/build of a municipal school in Godarville to MIGNONE, because the municipality first found MIGNONE's reference lists insufficient, then without any visible assessment declared after additional information that they were 'satisfactory and sufficient', and in its written observations to the Council brought up — for the first time — five references, three of which had already been in the first list deemed insufficient.
What happened?
On 8 July 2015 the municipality of Chapelle-lez-Herlaimont published an open call for tenders for the design and construction — a 'conception-réalisation' (design-build) — of a new school in Godarville with a kindergarten and primary section. The specifications were drafted by inter-communal IDEA and treated design and construction as one indivisible whole: the contractor is fully responsible for architecture, stability, technical installations, energy performance, acoustics, interior architecture, permits, construction and connections. The estimated value was €1,996,500 VAT included. The specifications stipulated that any offer above €1,650,000 excl. VAT would be declared irregular. Award criteria totalled 100 points: price 45, urbanistic and architectural quality 30 (five sub-criteria), technical quality 25. Technical capacity requirements included for the 'design' part an attestation from the Order of Architects and a list of comparable missions from the last three years; for the 'works' part the certification category D class 5 and a list of comparable works from the last five years (with date, recipient, amount, nature, status). The contracting authority would 'attach particular value to references concerning services of the same nature'. Three bidders submitted offers: MIGNONE (with design firm Bognanno), Houyoux Constructions (with Bee Architect) and Druez. On 2 December 2015 IDEA found MIGNONE's reference lists incomplete with regard to the market notice's requirements and, on the basis of article 59 of the Royal Decree of 15/07/2011, requested clarification: date of execution, type (joint venture, subcontracting…), amount, type of intervention, status, and concretely 'which elements suggest that the references presented are similar to the present contract'. MIGNONE replied on 11 December. For the works it now produced a list of 39 building works (none of them a school construction) and a list of 63 electrical works (including 2 schools and 3 nurseries), with mostly the same attestations as in the original offer. IDEA's analysis report of 22 December summarised this in two sentences: 'MIGNONE has provided the requested additional information. The documents produced show that the three bidders dispose of satisfactory and sufficient references to demonstrate their technical capacity for execution.' All three bidders were selected 'for the rest of the procedure'. MIGNONE achieved the highest score (44.32 / 100) and was awarded the contract for €1,642,445.59 excl. VAT. Houyoux came second with 38.39 points. The municipal council confirmed on 30 December and sent the decision on 5 January 2016. Houyoux and Bee Architect filed an extreme-urgency application on 20 January 2016. The municipality first argued that the appeal was out of time (15-day deadline from 5 January) and that Bee Architect, which had not formally signed the offer, lacked standing. Chamber President Jacques Jaumotte rejected both objections. The deadline starts the day AFTER the dispatch (dies a quo non computatur), so 20 January was the last day — appeal in time. And in an indivisible design-build contract where the contracting authority itself emphasises the central role of the architect, the designer SARL is prima facie indeed a person 'having or having had an interest in obtaining the contract'. The first plea had two branches. In the first branch the applicants argued that the contracting authority, contrary to article 58 § 1, 2° of the Royal Decree of 15/07/2011, had not set a minimum threshold for the selection criterion 'list of comparable works'. The specifications asked for references but did not say how many, for what kind of work, for what minimum amount — whereas judgments no. 232,049 (Carole Brunin Architecte, 14/08/2015) and no. 226,436 (SEDE Benelux, 14/02/2014) had sanctioned precisely such a gap. The municipality defended itself by saying that the certification 'category D class 5' was itself the minimum and that a supplementary reference requirement was not a separate selection criterion. The Council rejected that defence. Certification is one criterion, the reference list is a second, autonomous criterion of technical capacity within article 58 — both specifications and notice treated references as separate 'renseignements et formalités techniques' needed to assess capacity. The fact that the authority itself asked MIGNONE for clarification on 2 December on the basis of article 59 (a procedure that only makes sense if references are an autonomous selection criterion) confirms that. But the Council did not even need to decide whether the wording 'comparable works' was a sufficient minimum threshold. The second branch was already serious on its own. When the selection is not self-evident — when the specifications use a formulation with a wide margin of appreciation and the authority itself needs to request additional information — the authority must make its assessment visible, formally and substantively. Here the opposite happened: the analysis author was first not convinced by the original lists (hence the 2 December request), and after the answers concludes in two sentences that they are 'sufficient and satisfactory' — without explaining why. In its written observations the municipality tried to bring up five concrete references as pertinent: Manage (demolition/reconstruction, €1,021,450.59), SETCA Nivelles (office conversion, €546,838.05), Merbes-le-Château (presbytery to CPAS office, €701,126.39), L-Carré (rehabilitation music building, in progress, €1,319,394.22), Le Forem Mouscron (asbestos removal and renovation, in progress, €608,855.39). The Council made three findings: one, this reasoning appeared only in a post-decision document — it did not exist in the administrative file preceding the award. Two, three of those five references had already been in the original list considered insufficient; nothing fundamentally changed about their content, so why should they now suffice? Three, the two 'new' references (music building, asbestos office removal) had no direct link to school construction. Result: serious motivation defect AND manifest error of appreciation on the substantive assessment. The second branch of the first plea was serious — the first branch and the other pleas did not need to be examined. The Council ordered suspension of the award to MIGNONE with immediate execution. The separate request to suspend 'the decision not to award the contract to Houyoux' was rejected: suspension of the award does not automatically lead to awarding it to the second-ranked — the municipality may re-examine or abandon the procedure.
Why does this matter?
This judgment exposes two weaknesses present in many selection reports that rejected bidders often let pass. One: 'a list of comparable works' without a numerical threshold (how many? for what amount? of what type?) is in an open procedure NOT a valid selection criterion — article 58 of the Royal Decree of 15/07/2011 requires a 'minimum level' for each criterion. Two: when a contracting authority has to ask a bidder for clarification under article 59, that by definition means that the original references did not automatically suffice. In that case a two-line conclusion ('the requested information was provided, the references are sufficient') is no motivation — the authority must show which references it considers comparable after clarification and why. For rejected bidders this is a double line of attack: on the specifications (no minimum) AND on the motivation (no visible assessment). For contracting authorities a warning: asking an article-59 question raises your motivation burden, it does not lower it.
The lesson
As a rejected bidder: always request the full analysis report AND the correspondence between the authority and the chosen bidder. If it appears that the authority asked for clarification under article 59, the motivation that follows must explicitly show which references it considers comparable after clarification and why — not just that 'the requested information was received'. Also try to attack on article 58: does the specification contain a numerical minimum threshold for your type of technical criterion (number of references, minimum amount, exact nature)? If 'comparable works' is all that is written, you have a second line of attack. As a contracting authority: as soon as you ask an art. 59 clarification, you are taking on extra motivation obligations — write in your report which specific references you consider pertinent after the answer and on what grounds (recipient, function, finishing level, amount).
Ask yourself
Take the last analysis report you received (or wrote). Did the authority ask an art. 59 clarification of a bidder? Is the answer to that question in the file? Does the report concretely state (a) which references from the completed list are considered pertinent, (b) why (amount, recipient, similar function, similar finishing), and (c) how they relate to the object of the contract? Not even one of these three mentioned? Then you are in the same configuration as Chapelle-lez-Herlaimont and a suspension for motivation defect AND manifest error of appreciation is realistic.
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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 →