Two grounds for exclusion? One weak link can break the whole decision
The Council of State suspends the award of shower-renovation works to RECO+ because the Communauté française excluded VAEL on a combination of a tax debt that the tax administration itself had repeatedly denied existed, and a Social Security debt that did stand up — but without saying that either ground sufficed on its own, the weakest link drags the whole decision down.
What happened?
On 28 October 2016, the Communauté française launched an open tender for the renovation of derelict shower facilities at 'LIÈGE INTERNAT AUTONOME MIXTE' (Rue des Bruyères 150 in Liège). On 4 December 2016, SPRL VAEL submitted an offer of €213,613.88 and on 5 December was the lowest regular bidder. VAEL had stated in its offer that the Telemarc/Digiflow portal would show a negative tax certificate — not because of actual debts, but because dégrèvements (administrative tax credits) had not yet been booked. A receiver of the SPF Finances confirmed this by email on 15 December 2016 ('the debts in Digiflow will be cancelled and/or settled thanks to credits to which VAEL is entitled') and again in May 2017 ('this distorted the answers from those applications. The situation has been regularised on our side since April'). On Social Security, the contracting authority received two contradictory certificates: one of 8 December 2016 stating that on 5 December VAEL was not strictly observing the payment plan on a debt of €28,553.74, and one of 16 December 2016 stating that one day earlier — 4 December — it was. On 12 June 2017 the Communauté française excluded VAEL on TWO grounds, without hierarchy: a tax debt above €3,000 according to Digiflow, and a Social Security debt without strict compliance with the payment plan. The contract was awarded to RECO+ and concluded before VAEL filed on 30 June 2017. The defendant first argued inadmissibility — the contract is concluded, no interest left. The VIth chamber pushed that aside firmly. Article 30 paragraph 3 of the Public Procurement Remedies Act only prevents a 'declaration of ineffectiveness' of the concluded contract by an appeal body — that competence lies with the ordinary court. Suspension of the award decision itself remains the Council's competence, even after contract conclusion. A different reading would make access to extreme urgency illusory for those who arrive moments late. On the merits, regarding the TAX ground, the Council finds a 'manifest factual error'. When the contracting authority took the exclusion decision, it had been told repeatedly by both VAEL and the SPF Finances itself that the Digiflow data was incorrect and that there was simply no tax debt above €3,000. The receiver wrote in the present tense that VAEL was entitled to the credits; only the booking lagged. Even if the contracting authority had wanted to set aside those SPF confirmations, it should have justified that in the reasoning — which it did not. As for the Social Security ground, VAEL's argument was not serious. VAEL produced credit notes that turned out to come from Partena (a payroll service) and not from the Social Security Office, and were dated 8 February 2017 — after the exclusion decision. A contracting authority cannot be blamed for not taking into account documents that were never submitted to it. Then the hinge: because the exclusion decision rested on TWO grounds without the Communauté française clearly stating that EACH sufficed independently, and because article 61 §2 of the Royal Decree on procurement allows discretionary exclusion grounds, the Council cannot substitute itself for the authority by deciding which motive was determining. The weak tax ground therefore contaminates the whole. Suspension granted.
Why does this matter?
This judgment combines two takeaways every bid manager and procurement officer should remember. One: Telemarc/Digiflow is not gospel. When a bidder or a tax officer themselves confirms the portal data is wrong, the contracting authority cannot simply rely on the portal — it must investigate or explain why it follows the portal anyway. Two: under discretionary exclusion grounds (article 61 §2 RD 2011, by analogy article 67-69 RD 2017), stacking two grounds is not enough. If you mean to present them as alternatives, you must say so. If you don't, the whole decision will be dragged down by the weakest of the two. For bidders: attack the weakest ground first, because a single gap in the defence is enough. For contracting authorities: write 'each of these grounds independently suffices' if that is what you mean.
The lesson
When excluding a bidder on multiple discretionary grounds (article 61 §2 RD 2011, article 69 RD 2017), make explicit in the reasoning that EACH motive on its own justifies the exclusion. A list without such a statement reads, in the Council's eyes, as a cumulative rationale: one illegal motive jeopardises the whole. For bidders: identify the most contestable ground in the application and attack it — if the reasoning lacks the 'each suffices on its own' clause, that one weak link drags the rest down.
Ask yourself
When you motivate an exclusion decision on multiple discretionary grounds: does your text say somewhere that 'each of these grounds independently justifies the exclusion', or is it a list without hierarchy? In the second case, one untenable motive breaks the entire decision.
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 →