Certificates of good execution are not in principle confidential — appellants can request access when challenging the selection
In an annulment procedure against a €27 million award, the Council of State holds that certificates of good execution are not secret documents and reopens the debates so the parties can examine those documents — under strict conditions.
What happened?
On 16 December 2011 Intradel — the intermunicipal waste-management body for the Liège region — launched a European tender with negotiation for the design and construction of a biomethanisation unit for organic waste, at the Herstal site (intake, biomethanisation, dewatering) and Jeneffe site (post-treatment, refining, storage). Specifications CSC 10/24/INT, drafted by project author IBH. Four bidders submitted offers: TV CFE/Vinci Environnement/Cegelec, TV Waterleau Group/Franki, TV Fabricom/OWS/Galère, and TV Strabag Belgium/Strabag Umwelttechnik. On 28 November 2013 Intradel awarded the contract to Strabag for over €27 million excl. VAT (phase 1: €299,000; phase 2.1: €19,978,386; phase 2.2: €3,438,244; option 1: €3,758,022). CFE/Vinci/Cegelec first filed an extreme-urgency request, rejected on 11 February 2014 (ruling n° 226,387), then an annulment request. In this interlocutory ruling the Council addresses two requests for disclosure. First: the appellants request the scoring table that project author IBH would have drafted for the second award criterion (technical qualities). Intradel responds that IBH never had this scoring as a task and that the board scored itself. The Council finds that even if such an IBH table existed, it does not appear from the pleas raised that any discrepancy between IBH and Intradel is relevant. Request inoperative — refused. Second question: lifting the confidentiality of certificates of good execution submitted by bidders to demonstrate technical capacity. The first plea reproaches Intradel for selecting the Strabag partnership without it having demonstrated the required technical capacity. The Council rules: certificates of good execution are not in principle confidential — they merely confirm that works have been carried out according to the rules of the art. A party can however point to concrete elements affecting trade secrets or private life. The judge balances effective adversarial procedure (art. 65/26 of the law of 24/12/1993) and protection of business secrets. Decision: confidentiality lifted, but limited to (a) certificates concerning the appellants and intervening parties, not non-participating bidders; (b) only documents on which Intradel expressly relied. Specifically six documents for Strabag (including reception minutes of installations in Hoppstädten-Weiersbach and Mondercange) and two for the CFE partnership (references Montpellier and Forbach). The Council reopens debates and gives parties until 30 June 2016 to deliver redacted versions with justification for any remaining confidentiality claims.
Why does this matter?
Bid confidentiality is often used by contracting authorities and winners as a shield against procedural scrutiny: 'we cannot disclose what the winner submitted.' This ruling cuts through that shield when it concerns certificates of good execution. For losing bidders who want to challenge the selection on the basis of technical capacity, this is an important opening: you can ask the Council of State to lift confidentiality of the specific certificates the contracting authority relied on. For winners: know that your references can potentially become public in a procedure, and concretely justify which parts are truly confidential (specific processes, NDA-protected client names, financial details).
The lesson
If as a losing bidder you suspect the winner could not demonstrate the required technical capacity, then in your appeal explicitly request disclosure of the certificates of good execution the contracting authority relied on, and the lifting of confidentiality on those specific documents. Cite the standard of this ruling: certificates of good execution are not in principle confidential; only specifically identified elements affecting trade secrets or private life can remain secret.
Ask yourself
In your annulment request against an award where you suspect the winner did not meet the selection criteria: do you have (1) an explicit request for disclosure of the certificates of good execution, and (2) an explicit request to lift confidentiality of those specific documents to the extent the contracting authority relied on them?
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 →