Eight references from your Swiss supplier? Without a written commitment, none of them count
The Council of State refuses to select Medtradex because the bidder could not produce three of its own references for a detergent dispensing system, and the references of its Swiss supplier Borer Chemie were unusable without a written commitment under article 74 of the 2011 procurement-placement royal decree.
What happened?
In January 2016, Ghent University Hospital (UZ Gent) launched an open call for tenders for a framework contract for detergents plus a detergent dispensing system for its central sterilisation department. The technical capacity criterion required at least three references for installations of a detergent dispensing system including delivery of detergents, with at least one in a hospital. Two bidders submitted: Medtradex and Veru Chemie. Medtradex initially attached eight references from Switzerland and France, four without a contact person and none with a date or amount. After several requests UZ Gent realised these were references of Medtradex's Swiss manufacturer Borer Chemie AG, not of Medtradex itself. Medtradex eventually produced six own references — only two for hospitals (AZ Groeninge Kortrijk and Jan Palfijn Gent), and five of the six explicitly noting 'no dispensing system installed'. The sixth (KU Leuven) had no further details. UZ Gent did not select Medtradex and awarded to Veru Chemie. Medtradex sought urgent suspension and invoked article 74 of the placement royal decree, which allows a bidder to rely on the capacity of other entities — but only with a written commitment from those entities to make their resources available for the contract. Only at the Council did Medtradex argue that a sales concession agreement existed with Borer Chemie. The 12th Chamber (chamber president Dierk Verbiest) was unsparing: neither the offer nor the back-and-forth correspondence contained an unambiguous written commitment from Borer; the relationship was variously described as 'cooperation', 'subcontractor' and finally 'sales concession'. A water-analysis certificate signed by Borer is not a commitment under article 74. The application was rejected; Medtradex pays 200 euros court fee and 700 euros procedural indemnity.
Why does this matter?
Many SME distributors lean on their supplier's experience to bid. That is allowed — article 74 of the 2011 placement royal decree (since 2017, article 78) explicitly permits it — but only if the bidder produces a written commitment from the third entity to make resources available for this specific contract. A 'cooperation', a sales concession or a supplier relationship alone are not enough. And critically: the commitment must be in the offer, not improvised once the contracting authority asks questions or after a court appeal.
The lesson
If as a distributor you rely on a supplier's experience: include a signed written commitment from that supplier from day one — not a general statement of cooperation, but one specifically tied to this contract, naming what is being made available (technical support at installation, staff, knowledge, materials). And remember: your own references must meet the minimum requirement on their face — five out of six entries marked 'no dispensing system installed' will not save you.
Ask yourself
Your selection criterion requires three references for a specific installation type. Your own list has six entries, but five explicitly note that the required installation was not part of the project. You add your supplier's references, but without a signed commitment that the supplier will help execute this contract. Risk of non-selection: very high.
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 →