If you ask before the deadline whether your certificate is good enough, a 'no' on paper is hard to challenge later
The Council of State dismisses an extreme-urgency suspension by a window installer who was excluded because his ATG and ISO 9001 did not match a specific quality-label requirement in the specification — precisely because he had asked the question himself six weeks earlier and received a written 'no', he could no longer invoke a defective statement of reasons.
What happened?
LOGISVESDRE — a social housing cooperative around Verviers — launched a contract in December 2018 to replace PVC windows in social housing on the Cités Jean Hennen (Verviers-Stembert) and Bouleaux (Petit-Rechain). The procedure was open, governed by the 17 June 2016 Public Procurement Act, under specification 124.535. The specification contained one striking qualitative selection requirement (point Q.2 and article 3.3 of the administrative clauses): bidders had to submit both a production certificate and an installation certificate, meeting as a minimum 'process control through two annual audits by the certifier', on pain of exclusion. Two weeks before the deadline, Pierret Project — a window installer based in Namur — doubted whether its documents would suffice. On 15 January 2019 it emailed LOGISVESDRE: would an ATG with certification, a D5 class 5 accreditation and good-execution attestations from similar projects qualify as equivalents? In the same email it accused the authority of 'wanting to close the market (monopoly) and shut down competition'. The next day Pierret was rebuffed: 'ATG, accreditation and execution attestations are in no way comparable to an independent quality label as described in the specification'. Pierret submitted anyway on 29 January 2019, with the same ATG documents and an ISO 9001:2015 certificate. Three bids came in. On 28 February 2019 Pierret was given a regularisation window of twelve days — it sent back the same documents. On 8 April 2019 the LOGISVESDRE board excluded Pierret and awarded the contract to J.-F. DIEDERICKX. The notification letter of 29 April 2019 mistakenly referred to article 65/8 of the old 24 December 1993 Act — legislation no longer in force. Pierret filed for extreme-urgency suspension on 13 May 2019, with a single plea in four parts: wrong legal basis, missing legal reasoning, missing factual reasoning and manifest error of assessment. The Council dismisses all four parts. The wrong reference to the 1993 Act only affects the cover of the notification letter, not the substantive reasoning. The actual legal basis was 'easy and certain' to identify from the specification itself (which cites article 66, §3 and 71 of the 17 June 2016 Act) and the regularisation letter (which expressly cites article 59 of the 18 April 2017 Royal Decree). The factual ground was brief but sufficient: read together with Pierret's own 15 January email, LOGISVESDRE's 16 January reply and the February-March regularisation round, Pierret knew exactly what was missing — process control through two annual audits. Finally, the specification criterion is not manifestly unreasonable, and the bidder itself does not dispute that its documents fail to meet it. Suspension dismissed, costs reserved.
Why does this matter?
Two opposing lessons in one judgment. For bidders: asking ahead seems safe, but the answer becomes evidence against you if you submit anyway and things go wrong. For contracting authorities: a typo in the legal article cited in your notification letter is not a ground for annulment as long as the substantive reasoning stands and the bidder can find the actual legal basis elsewhere. And specifically on certificate-based selection: a specification may require a specific production or installation label with process control as a minimum, even though that excludes ATG and ISO 9001 — this is not unlawful market foreclosure.
The lesson
If you ask the contracting authority before the deadline whether your evidence suffices and you get 'no' in writing, you have two choices: find another document, or do not bid. What you cannot do is submit with the same documents and then attack the award for 'defective reasoning'. The Council will lay your own email next to the award letter and find that you knew exactly what was missing. And for every selection requirement, check whether the requested label refers to a producer, a product or a process control — that distinction was decisive here.
Ask yourself
Did I contact the contracting authority before submission about the acceptability of my selection documents? Is the answer in writing? Do my submitted documents match what the authority confirmed as acceptable — or am I bidding on hope? And: do I know which type of label the specification actually requires (product / process / management) or am I just filling in 'something on quality'?
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 →