Want one project to count as a reference for every discipline? Say so in your application — not at the Council of State
The Council of State rejects the extreme-urgency action of an architectural firm that only afterwards claimed that its single restoration reference 't Schaliken was actually meant as a reference for architecture, technical studies and stability as well — while the city of Oudenburg had asked for four separate references in the call for applications and the firm's own application maintained that distinction.
What happened?
The city of Oudenburg launches a negotiated procedure with prior publication for a study contract covering architecture, technical studies, stability, surroundings layout and EPB for a new local administrative centre on the listed Abdijhoeve site. The project cost is estimated at 3,500,000 euros. The notice requires one reference for an administrative building or equivalent project (net construction cost minimum 1,500,000 euros), one additional reference for a subsidised restoration project (minimum 500,000 euros) and separate references for architectural design, technical study and stability study. Nineteen applications come in, including that of BVBA Antwerps Architecten Atelier together with DS Engineering, Tecnobel, Bureau Van Den Broeck and TV Thiers-Dujardin. AAA submits two references: the Boma project (renovation of warehouses and offices) as the equivalent project, and 't Schaliken in Herentals (restoration of a listed building plus polyvalent hall) as the restoration reference. No separate technical-studies reference, no separate stability reference. The selection report of 7 April 2016 — approved by the College of Mayor and Aldermen on 12 April 2016 — gives AAA zeros for technical-studies and stability references, a 'partially achieved' for restoration, and excludes them from the six selected candidates. On 8 November 2016 the contract is awarded to the Gino Debruyne consortium. AAA files an extreme-urgency application on 22 December 2016. The single ground: the city failed to motivate the selection decision, breached the principles of equality and transparency, and misread article 72, 7° of the Royal Decree of 15 July 2011 on the certificates of good performance. The core argument: 't Schaliken was supposedly a comprehensive reference for all disciplines — architecture, technical studies, stability and restoration — executed with the same subcontractors that AAA was now bidding with. Boma was supposedly only submitted as a backup. Counsellor Pierre Barra disagrees. Nowhere in the application file is 't Schaliken clearly identified as the comprehensive reference. On the contrary: AAA itself describes 't Schaliken as 'the restoration of 't Schaliken, construction of the polyvalent hall, kitchen, reception, offices, tourist office, outdoor layout, square' and Boma as 'renovation of offices, warehouses, training rooms, shop, façade, parking'. The contracting authority — after careful examination of the application — could not but assess each project as AAA itself had presented it: Boma as the equivalent project, 't Schaliken as the restoration project. The Council adds that 't Schaliken does not significantly contain office space, individual offices, landscaped offices or closed work spaces, while the six selected candidates all submitted clearly identifiable office buildings. Moreover, AAA's own detailed note shows that the final net construction cost of the restoration component of 't Schaliken was 333,933.84 euros — below the required 500,000 euros minimum for the restoration reference. The clarification e-mail of 20 April 2016 from the Belfius project manager — explaining that Tecnobel was not mentioned in the Boma reference and that 't Schaliken 'is only a limited administrative building and largely a theatre hall' — was merely additional explanation of motives already in the selection report, not new reasoning after the fact. The ground is not serious. Application rejected, AAA ordered to pay 200 euros docket fee and 700 euros procedural indemnity.
Why does this matter?
When selection criteria require separate references per discipline — architecture, technical studies, stability, restoration — your application must spell out which project covers which box. If you submit one comprehensive project but split your file into two clearly separated discipline categories (equivalent project vs. restoration project), you cannot later argue at the Council of State that the project actually covered all the boxes. The contracting authority reads what you write, not what you mean afterwards. For architectural firms and design teams working with multiple subcontractors: state explicitly with each reference which subcontractor handled which part, and what the cost was of the part for which you invoke the reference.
The lesson
If you want one project to count for multiple selection criteria, write it literally in your application: 'Project X serves as reference for architectural design, technical studies and stability study because...' — and explain why one project covers all boxes. Break down construction costs per component (restoration vs. new build, technical, structural) so the contracting authority can verify that you exceed the threshold per component. What you do not make explicit, the contracting authority is entitled to read at face value.
Ask yourself
Re-read your own application and imagine an external reader who has only your file in front of them, without oral explanation. Can he or she identify, for each required selection criterion, which project you are invoking and why it is above the threshold? If not, rework your file before submission — at the Council of State that opportunity has passed.
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 →