Maintenance during the warranty period is not a 'service contract' — Skoda eliminated for 175 MIVB trams
The Council of State rejects Skoda's extreme-urgency suspension against its non-selection for the MIVB framework agreement for 175 trams: Skoda's satisfaction certificates concerned the supply and warranty-period service, while the third selection criterion required a reference to a separate service contract on life-cycle management — two different things that Skoda had bundled into one.
What happened?
The MIVB launched a framework agreement for the study, manufacture, supply, commissioning and possible maintenance of around 175 trams (utilities sector, negotiated procedure with publication). The notice set three technical capacity criteria: (1) at least five public procurement procedures since 2011 leading to confirmed orders for low-floor trams, (2) at least 120 low-floor trams supplied since 2011, and (3) at least one reference to 'a service contract (excluding repair after an accident) since 2011 demonstrating experience in life-cycle management', including a satisfaction certificate from the client. Eleven data points were required per reference, including type of contract, description, annual contract value, order date and the satisfaction certificate. A maximum of 5 candidates would be selected. Seven dossiers were submitted (Alstom, Bombardier, CAF, PESA, Siemens, Skoda, Stadler). For the third criterion Skoda submitted two references: Miskolc Városi Közlekedési Zrt (Hungary, 31 ForCity Classic 26T low-floor trams) and Helsinki City Transport (Finland, 40 ARTIC low-floor trams, 113 million euros). For both references Skoda described the nature as 'full service during the warranty period' and 'major maintenance excluding daily cleaning during the warranty period'. The certificates attached confirmed satisfaction with the supply of the trams, not with a separate service contract. MIVB excluded Skoda: for references 3.1 and 3.2 'the satisfaction certificate of a service contract as described above' was missing, hence no valid reference for life-cycle management. The five selected candidates were Alstom, Bombardier, CAF, PESA and Siemens. Skoda filed for an extreme-urgency suspension. First plea: the motivation ('missing satisfaction certificate') was factually incorrect because certificates had been provided. The Council rejects: read together with the selection report and the technical-capacity evaluation report, the MIVB's wording clearly means that the satisfaction certificate of a service contract was missing — the certificates that were submitted concerned the supply contract for trams, not a service contract on life-cycle management. Skoda's argument that they were 'full service' contracts covering production, supply, commissioning and life-cycle management cannot be inferred from the certificates themselves. Maintenance during the warranty period is not a separate service contract on life-cycle management. Second plea: MIVB should have asked for clarification rather than excluding. The Council rejects: this plea rests on an incorrect premise — the exclusion was not based on the absence of certificates but on the substantive finding that the certificates did not demonstrate a life-cycle management service contract, so a clarification could not have remedied the deficiency. An additional document submitted at the hearing (a client e-mail of 12 May 2016) is excluded from the debate as too late. Suspension request rejected. Skoda pays 200 euros court fee and 700 euros procedural costs to MIVB; Siemens pays 150 euros for its intervention.
Why does this matter?
Suppliers of complex industrial goods (trams, trains, machinery) tend to bundle commercial contracts: a sale, warranty service, optional maintenance contracts, sometimes full life-cycle agreements under a single master contract. In commercial logic, that is one 'project'. But public procurement disaggregates those contracts: a contracting authority distinguishes a supply contract from a service contract from a framework spare-parts contract. This judgment teaches that you must write your reference certificates in the contracting authority's TAXONOMY, not in your industry's. If the selection criterion asks for a 'service contract on life-cycle management', your satisfaction certificate must explicitly mention that service contract — not the supply 'to full satisfaction' of the trams. For bid managers, that means a key discipline: when collecting client certificates in advance, frame your request to the client in the exact vocabulary of the selection criterion. A certificate saying 'they are satisfied with the trams supplied' will not help when 'service contract life-cycle management' is required. At the same time, the judgment shows that the contracting authority does not have to allow regularisation in case of a substantive shortcoming: if your reference does not match the criterion in substance, that is not a formal omission but a substantive non-compliance, and the MIVB does not have to invite you to provide 'something similar'. And for capacity exclusion in a utilities-sector procedure: warranty-period maintenance is not, according to the Council, a 'service contract on life-cycle management' — these are juridically distinct categories of performance.
The lesson
For every selection criterion that requires a specific contract type (service contract, supply contract, maintenance contract, full life-cycle): ask your client for a satisfaction certificate that VERBATIM names the contract type required. Not 'satisfied with the project', not 'satisfied with the products supplied', but 'satisfied with the [type of contract as named in the criterion] performed from [date] to [date] for [amount]'. If one reference covers two contract types (e.g. supply + service), ask for two separate certificates or a single certificate that explicitly distinguishes both. And cross-check your references carefully against the criterion's definition: 'service during the warranty period' is not a 'service contract on life-cycle management'. Do not expect the contracting authority to give you a chance to fix it — substantive deficiencies do not entitle you to regularisation.
Ask yourself
Walk through the satisfaction certificates in your most recent application. For every selection criterion requiring a specific contract type: does the certificate name that type verbatim? Or does it name something else ('the project', 'the supply', 'the service during the warranty period')? If something else, ask your client for a new certificate using the right vocabulary. And never count on a later opportunity to add documents: if the contracting authority concludes that your reference does not substantively meet the criterion, your application is over.
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 →