Between 'incorrect statement' and 'gravely false statement' there is a motivation gap the contracting authority must fill
The Council of State annuls the exclusion of a cleaning company on the ground of 'gravely false statements' (article 61, §2, 7° of the 2011 Royal Decree) because the Walloon Region had only established that the bidder's environmental management evidence did not meet the requirements — never explaining where the 'gravity' lay.
What happened?
The Walloon Region launched a contract for sanitary maintenance and window cleaning of its building at Avenue Prince de Liège 15 in Jambes (Namur), under the old regime of the Royal Decree of 15 July 2011. CEMRE — a cleaning company claiming 15 similar public contracts on its track record — submitted a bid and stated that it had an environmental management system equivalent to ISO 14001, as required by the specification. When the Region asked for the supporting documents, CEMRE first replied that its statements 'had always been sufficient' and then sent documents that, according to the authority, did not match what was requested. First consequence: non-selection due to deficient environmental management system. CEMRE went to the Council of State, and the Region then — in a second award decision dated 1 August 2018 — moved beyond non-selection: it now excluded CEMRE altogether on the basis of article 61, §2, 7° of the 2011 Royal Decree (a bidder 'gravely guilty of false statements'). Subsidiarily, the Region added article 61, §2, 4° (grave professional misconduct). The reasoning was content with finding that CEMRE had 'manifestly' made false statements, not only for this contract but 'apparently for several years on all Walloon cleaning contracts'. The clincher of the reasoning became: 'CEMRE wishes to invoke a right to be selected because it always has been'. CEMRE returned to the Council of State and on 15 October 2018 already obtained a suspension judgment (no. 242,645): the second plea — breach of the duty to state reasons and of article 61, §2, 7° — was found serious. The Council noted that the 'gravity' of the statement must be expressly established, and that the proposition 'CEMRE invokes a right to selection' is no indication of such gravity. The Region failed to file a continuation request within the statutory thirty-day deadline. On 21 February 2019 it itself withdrew the contested decision but did not provide proof of notification to the awarded contractor — meaning the withdrawal could not be deemed final. The Council then applies the accelerated procedure of article 17, §6 and article 11/2 of the general procedural rules and annuls the exclusion decision on the strength of the plea already deemed serious. Three substantive foundations of the annulment: the contracting authority had not shown where the 'gravity' lay, could not motivate the exclusion through CEMRE's procedural posture ('right to selection'), and could not invoke article 61, §2, 4° (grave professional misconduct) by simply referring to the same facts already characterised under 7°. Region ordered to pay €920 in costs.
Why does this matter?
Article 61, §2, 7° (and the current article 69, 8° of the 2017 Royal Decree) is a dangerous tool in the hands of an authority irritated by a difficult bidder. The ground is intrinsically heavy: discretionary exclusion for false statements. But the Council reminds us that the adverb 'gravely' is not decorative. A disagreement about the content of a submitted document, the inadequacy of evidence in the selection phase, or a late top-up — these belong to qualitative selection, not to an exclusion for false statements. For bidders who feel the difference between 'my document was not accepted' and 'I am being excluded as unreliable': this judgment offers them a strong defence.
The lesson
For contracting authorities: if you want to exclude someone for false statements, motivate three things separately — (a) the inaccuracy, (b) why that inaccuracy is 'grave', (c) why you actually exercise the discretion. Do not blend the three, and do not use the bidder's own procedural arguments as proof of 'gravity'. And there is no automatism between false statement and grave professional misconduct: if these are two distinct grounds, motivate them distinctly. For bidders: if an authority moves from non-selection to exclusion in a second award decision without new facts, that is a strong signal of breach of equal treatment and of defective reasoning — file for suspension and press the difference between inaccurate and gravely false. Procedurally: authorities that forget to file a continuation request after a suspension risk an accelerated annulment without further debate.
Ask yourself
For contracting authorities: if I write 'gravely false statements', can I list the specific gravity factors in two sentences — separately from the inaccuracy itself? For bidders: am I being excluded on a ground that is in fact a selection issue (my evidence was not enough), but dressed up in the heavier language of false statements or professional misconduct? For procedure watchers: did the authority meet the 30-day deadline for the continuation request after the suspension judgment?
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 →