H is not H2 — anyone challenging a railway contract's accreditation category must not compare apples with pears
The Council rejects Strukton Rail's extreme-urgency appeal (€12,486,148.88) against the award of a railway contract to Putman Frères (€9,955,008.05) for finishing works at Klein-Eiland station: Strukton accuses Putman of having only category H accreditation instead of H2, but confuses 'overhead lines' (general H accreditation) with 'placing contact wires' (specific subcategory H2) and therefore fails to provide a usable calculation showing H2 was required for the whole contract.
What happened?
In April 2017 Infrabel launches an open tender for 'TR211330 – Klein-Eiland: civil engineering finishing and equipment works' in the special transport sector. The work covers earthworks, hydraulics, track, overhead-line and signalling works to commission bypass L96A, plus the new line nL50A from KP 1.3 to KP 4.0, removal of a temporary level crossing, extension of platform 12 at Brussels South and remediation under viaduct L50C. The deadline is 22 June 2017 at 12:00. Two bids: Putman Frères for €9,955,008.05 and Strukton Rail for €12,486,151.72 (after correction of a rounding error: €12,486,148.88). On 12 September 2017 Infrabel awards to Putman, finding that both bidders meet the accreditation requirements with 'the required accreditation in the category and class corresponding to their bid amount'. On 21 September 2017 Strukton requests evidence that Putman meets the accreditation requirements. Infrabel replies on 28 September 2017 that 'the works under chapter 7 (track works) represent a greater value than those under chapter 8 (overhead-line works), so accreditation in category H is sufficient'. On 29 September 2017 Strukton files an extreme-urgency appeal: it argues Putman should not have been retained because it lacks H2 accreditation, while 'the overhead-line works' supposedly represent the greatest share and require H2. Three sub-grounds: (1) Putman lacks the required H2, (2) specifications point 12.3.1 requires H2 for whoever performs the overhead-line works, and (3) allowing Putman to produce H2 afterwards would be prohibited regularisation. The Council turns to the text of the ministerial decree of 27 September 1991 defining the categories. Category H — 'general railway contracting' — covers 'the complex contracts for realising the railway network for trains, trams and metros or industrial rail transport, such as laying foundations, rails and overhead lines'. Two specific subcategories sit under H: H1 'rail welding' and H2 'placing contact wires'. The Council pinpoints Strukton's error: it assumes 'H2 is required for all overhead-line work, which prima facie is not the case. Placing contact wires appears to be only one component of installing overhead lines'. Overhead lines fall under general H. Only the specific act of placing contact wires requires H2. To show H2 was needed for the whole contract, Strukton should have compared the value of placing contact wires alone with the value of the rest — not the entire overhead-line work versus what it calls 'track works'. Strukton fails to make that separate calculation, and it is not for the Council in extreme-urgency proceedings — where 'the applicant carries a pronounced burden of pleading' — to do it instead. Moreover, by attacking the accreditation arrangement Strukton implicitly criticises the notice and specifications (which expressly allowed H or H2), criticism it did not voice before bidding — which 'relativises' the seriousness of the grievance. The first two grounds are not serious. The third — about prohibited regularisation — lacks factual basis: Infrabel never gave Putman a chance to produce an H2 accreditation later. Application rejected. Strukton pays €200 court fee and €700 procedural indemnity to Infrabel; Putman bears €150 court fee for its intervention.
Why does this matter?
For bidders considering challenging a competitor's accreditation, this is the diagnostic framework: accreditation categories in the 27 September 1991 ministerial decree are precisely delimited; general categories (H, A, B, C, D, E, F, G) cover the entire complex activity in principle, while subcategories (H1, H2, D6, D8 etc.) cover only a specific act within that activity. Anyone arguing a subcategory was required must isolate the value of that specific activity — not the entire upper activity. For contracting authorities the ruling confirms that specifications language allowing both a general accreditation and a subcategory ('H or H2') is legally sound, provided it matches the substantive nature of the works. An applicant who failed to comment beforehand on that wording builds the ground on weak foundations: the Council sees such belated objection as 'relativising' the grievance's seriousness. A third general lesson: in extreme-urgency proceedings the applicant carries a pronounced burden of pleading. The Council does no calculation of its own, not even where an irregularity is theoretically conceivable. Anyone wanting to plant serious doubt must supply the numerical underpinning — preferably with items from the bill of quantities and clear reference to the precise act for which the ministerial decree requires a subcategory.
The lesson
Want to challenge the winning bidder's accreditation category? Do three things before drafting the appeal. (1) Read the 27 September 1991 ministerial decree's exact wording of the category and any subcategories — what does 'H' cover precisely, and what falls only under 'H2'? (2) Isolate in the winning bid's bill of quantities the items that fall only under the specific subcategory — not the broader top category. (3) Calculate the relative value of those specific items against the 'largest percentage of the contract sum' as required by article 5, § 7 of the 26 September 1991 Royal Decree. If the result fails to show the specific subcategory represents the largest share, you have no serious ground — the Council won't do the calculation for you.
Ask yourself
Am I challenging that a competitor has the wrong accreditation? Three checks: (1) did I look up in the ministerial decree what the general category covers exactly and which acts fall under a specific subcategory? (2) did I isolate in the bill of quantities only those items belonging to that subcategory — not the entire upper category? (3) did I raise objections to the specifications wording before submitting my bid? Any 'no' — high chance the Council finds your ground not serious.
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 →