A reference of 3.2 million euros for a commercial park does not count as a 'watercourse project' when only 299,000 euros were actually performed on the stream
T.R.B.A. submits references of 3.2 million euros (Estaimpuis) and 817,000 euros (Braine-le-Comte) for a selection criterion requiring '2 projects of 600,000 euros on non-navigable watercourses', but the Council of State reads the criterion as 'projects whose main object concerns works on watercourses' – and the Estaimpuis file (a commercial park where only 299,318 euros were actually performed on the Esperlion) does not meet that bar.
What happened?
The Walloon Region launches a tender for 'Improvement works on a 1st category non-navigable watercourse: creation of a retention area on the Trouille at Harmignies' – construction of a dyke with a sheet pile core, installation of an automatic computerised gate system, placement of rip-rap and bank consolidation. Open procedure with award criteria investment cost (40 points), technical value (30), delivery time (15) and environmental impact (15). For technical capacity, the specifications require 'proof of completion of 2 projects of 600,000 € excl. VAT on non-navigable watercourses, in the last 5 years', with the requirement that supporting documents specify amounts, places and times of execution and be accompanied by an authenticated certificate of good performance. On 26 September 2018 two bids are submitted: SPRL E.T.H. and T.R.B.A. T.R.B.A. submits two references: (1) Estaimpuis, Commercial Park – Earthworks and surroundings (project 14853-15757, 2014-2016, total 3,194,618.38 € excl. VAT, client SA PCE); (2) Braine-le-Comte, creation of a stormwater basin and 3 floodable areas Martel/Feluy/Houssière (project 11455, 2012-2013, total 817,652.87 € excl. VAT, municipal administration). On 8 October 2018 the Walloon Region asks for clarification. For Estaimpuis: the attached certificate mentions only 'curage de cours d'eau' for 387,199.46 €. For Braine-le-Comte: the supporting document mentions 495,903.17 € excl. VAT – below the threshold. T.R.B.A. responds on 17 October 2018: both projects were carried out on a non-navigable watercourse (Esperlion in Estaimpuis, Brainette in Braine-le-Comte); the certificates only cover category B works; the current Trouille project itself contains 385,000 € of supplies and 69,801.31 € of works not specifically B/B1. For Braine-le-Comte: the final amount is 838,119.91 € (final progress report approved by the works supervisor); the 495,903.17 € relate only to category B works. For Estaimpuis: the total is far above 600,000 € and the area is crossed by the Esperlion. On 28 November 2018 the Walloon Region decides NOT to select T.R.B.A. and to award the contract to SPRL T.E.H. Reasoning: for Braine-le-Comte, the plans and progress report no. 16 effectively show works on the Brainette for an amount above 600,000 € – PROJECT ACCEPTED. For Estaimpuis, however, progress report no. 30 (the most complete) plus invoice 18.05.029 SA GSD INVESTS show that the zone 'ZONE B – STREAM MODIFICATION – UPSTREAM STRUCTURE + GABIONS' on the Esperlion totals 298,665.12 € excl. VAT, plus PC02 +3,133.76 € and PC03 -2,480.40 €. Total watercourse reference: 299,318.48 € excl. VAT – below the 600,000 € threshold. Moreover, the certificate is dated 23 November 2016 for 387,199.46 €, while progress report no. 30 dates from 7 December 2017: the certificate was issued before the project ended and for a higher amount than progress report no. 30 shows – PROJECT REFUSED. The Walloon Region accuses T.R.B.A. of confusing 'contracts whose object is specifically directly linked to a non-navigable watercourse, for which all items are inseparable from that object' with 'contracts whose main object does not in any way concern a non-navigable watercourse on which works may be carried out as detachable connected works'. T.R.B.A. files an extreme-urgency application with two pleas. First plea: the criterion does not say 'EXCLUSIVELY' on watercourses, and the Walloon Region adds an additional condition after bid opening ('specifically directly linked'). The current Trouille project itself shows that only 32% of the contract is 'directly in contact with the water' – on 702,163.43 € excl. VAT only 227,330.70 € actually in contact (with T.R.B.A. counting e.g. the fabrication of a hydraulic gate item 32 as 90% out of 'contact' and only 10% installation as 'contact'). Second plea: the criterion is disproportionate (art. 71 of the law of 17 June 2016) because (1) works actually in contact with the water are limited to 32%, (2) T.R.B.A. has accreditation in category B class 4 (even class 7, up to 5,330,000 €), which already attests its capacity, and (3) excluding NAVIGABLE watercourses is illogical, as works on navigable streams are technically heavier. T.R.B.A. has a certificate for works on the Schelde at 7536 Vaulx (2015-2016, amount 1,148,242.74 €). The Council of State (acting president David DE ROY) does not follow T.R.B.A. On the first plea: the criterion must reasonably be interpreted as requiring 'projects whose main object is works on non-navigable watercourses', even if some items may be detachable or without direct contact with the water. For Braine-le-Comte this was the case (above 600,000 €), for Estaimpuis it was not (only 299,318 €). No distortion, no added condition. On the second plea: T.R.B.A.'s 32% calculation is particularly restrictive (especially the gate item 32 makes that visible – 90% factory fabrication as 'no contact'). On reading the bill of quantities, the items usefully serving 'works on a non-navigable watercourse' (also without direct contact) appear to represent an amount in respect of which the 600,000 € threshold is not disproportionate. The category B accreditation is a general capacity indication, while the selection criterion requires SPECIFIC experience with non-navigable watercourses – the two do not overlap. The exclusion of navigable watercourses does not make the criterion disproportionate: the contracting authority may focus specifically on non-navigable streams, even if navigable ones would be technically heavier. Application rejected. T.R.B.A. pays 200 € roll fee, 20 € contribution, 700 € procedural indemnity to the Walloon Region.
Why does this matter?
Selection criteria on references are a minefield for bidders with general contracting experience. The reasonable interpretation the Council makes explicit here – '2 projects of 600,000 € on watercourses' = 'two projects whose MAIN OBJECT is works on watercourses' – means that a large mixed project with a few items performed on a stream does not qualify. The contracting authority may sift through the INVOICE down to item level, and if the actual at-the-stream amount falls below the threshold, you are out. At the same time this is not 'adding a condition' afterwards. A second practical point: T.R.B.A.'s argument that its class 7 accreditation (up to 5.3 million euros) already attests its capacity collapses on an important distinction. Accreditation is GENERIC; a selection criterion requiring SPECIFIC experience (non-navigable watercourse) does not overlap with accreditation and is therefore not automatically redundant. And a third, treacherous point: T.R.B.A. tried to prove the criterion was disproportionate via its own breakdown 'directly in contact with the water' versus 'no contact' – but its breakdown was so restrictive (90% of a hydraulic gate counts as 'no contact' because it is assembled in a factory) that it worked against her. Beware of arguments taken too far: a judge sees they tip the other way.
The lesson
Before submitting a reference: do not count the CONTRACT amount of the whole project, count the amount of the items a reasonable reader would say constitute the main object of the project. If the requirement is '600,000 € on watercourse', ask yourself whether a typical visitor to the works would say 'this is a watercourse project' or 'this is a commercial park where a stream happens to flow'. And accept that an accreditation does not absorb every selection criterion: a contracting authority may require specific experience on top of general accreditation – the two do not measure the same thing.
Ask yourself
If your company is submitting a reference for a mixed project (commercial park, residential project, infrastructure) that included some hydraulic works: can you show item-by-item that the works at the watercourse, in total, meet the threshold? Or are you depending on an interpretation that says 'this whole contract amount counts'? In the second case: find a stronger reference or do not rely on it alone.
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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 →