No supporting documents, no defence: a contracting authority that cannot justify its accreditation requirement sees the award suspended
The Council of State suspends — under extreme urgency — the award of lot 2 because EV-ILVO submits no document explaining why the electrical and data works fall under accreditation sub-category P1 rather than P2, while RDR Infra demonstrates with a meticulous four-page table that the bulk of the works actually sits under P2.
What happened?
EV-ILVO — the Own Resources Fund of the Institute for Agricultural and Fisheries Research — issues a works contract for replacing an electrical sub-station and laying infrastructure for electricity, gas, water and data. The notice appears in the Bulletin der Aanbestedingen of 13 August 2019. Simplified negotiated procedure with prior publication, two lots: lot 1 (gas and water) and lot 2 (electricity and data). In clause 1.3.09 of the specifications EV-ILVO requires accreditation P1 - class 3 for lot 2, C2 - class 1 for lot 1, and P1 - class 3 for both lots combined. RDR Infra bids for both lots. It is the only bidder for lot 1 and the most attractive bidder for lot 2 against bvba Elektrotechnische Ondernemingen Vander Putten (EOVP). The award report finds that RDR holds 4P2, 2P1, 2P3 and 2S1 — but not the required 3P1. The Belgian register of accredited contractors confirms this. RDR provides no proof of an application in progress. EV-ILVO classifies this as a substantial irregularity and excludes RDR for lot 2. On 20 November 2019 it awards lot 1 to RDR and lot 2 to EOVP. RDR files for extreme-urgency suspension on 12 December 2019. The sole ground: RDR argues that the P1 requirement for lot 2 was wrong and that the actual subject of the works falls under P2. The reasoning is technical and exhaustive — nine pages of explanation, with a table of four pages that allocates each item to P1, P2, C, C6 or C7. Conclusion: €146,480.88 of works under P2, €114,568.48 under P1, €64,976.79 under C, €128,968.40 under C6 and €5,100 under C7. The bulk sits under P2 — and according to article 5, § 7 of the Royal Decree of 26 September 1991, that determines the sub-category of the contract. Invoking article 159 of the Constitution, RDR asks the Council to set aside the P1 clause. EV-ILVO’s defence is remarkably thin. Its memorandum produces no document that could explain or substantiate the choice for P1. It limits itself to a principled position: it is bound by the specifications it itself adopted, it cannot apply article 159, and it ‘considers that the accreditation requirement was lawfully imposed’. For the rest it defers to the Council. The Council makes short work of that posture. Against a ‘highly developed ground’ stands ‘no adequate defence’: not a single document explains the choice between P1 and P2. In such a technical matter the Council cannot dismiss RDR’s analysis prima facie on its own assessment alone. The ground — careless categorisation — appears not without seriousness. On top of that the Council recalls its settled case-law (judgments nos. 210,675 of 25 January 2011, 225,233 of 24 October 2013, 240,866 of 1 March 2018): under article 3 of the 1991 Accreditation Act the accreditation conditions must be met at the time of award and are definitively determined by the bid amount. It follows that the accreditation requirement in the specifications is ‘precarious’ and that the requirement actually applicable at award must be re-examined — re-qualification must be considered possible, certainly for a contract that ‘appears complex in terms of accreditation categories’. The defence that the contracting authority must apply its own specifications without exception does not therefore hold absolutely in accreditation contentieux. Ground serious. Because of extreme urgency — the Act of 17 June 2013 only requires a serious ground or manifest illegality — the Council orders the suspension of the award of lot 2 to EOVP. Costs are reserved until the merits decision.
Why does this matter?
Accreditation requirements look like a tick-box step: the authority sets the category and class in the specifications, the bidder shows proof, done. This judgment proves it does not work that way. The accreditation clause in the specifications is not an untouchable given — when challenged, the contracting authority must demonstrate why a contract sits in P1 and not P2, in C and not D. If it cannot, the Council of State can set the clause aside under article 159 of the Constitution. For bidders who are excluded for an accreditation irregularity this means two things. First: a suspension ground showing that the bulk of the works falls in another sub-category is a serious lever — especially when the authority gave the choice little thought. Second: the burden of substantiating that other classification lies with you; do it item by item with amounts, not in the abstract. RDR’s four-page table, with shares per sub-category and a final conclusion on relative value, is a template usable elsewhere. For contracting authorities the judgment turns a principle that elsewhere in award disputes is often untouchable on its head — the patere legem rule: ‘I must apply my own specifications, so the bidder without the required accreditation must be excluded’. In accreditation contentieux that rule is ‘not absolute’. Whoever drafts an accreditation requirement must be able, when challenged, to document why exactly P1 (or another sub-category) fits. A mere reference to the specifications is no defence.
The lesson
Whether you challenge an accreditation decision or you are the contracting authority defending one: start with an item-by-item analysis of the specifications. What share of the bid amount actually falls under which sub-category? Show it with figures. Under article 5, § 7 of the Royal Decree of 26 September 1991, the ‘largest share’ of the works determines the sub-category. Has the authority drafted an accreditation requirement that does not match that analysis — and cannot it document its choice? Then you have a suspension ground.
Ask yourself
Is the authority’s defence memorandum limited to ‘we believe the accreditation requirement was lawfully imposed’, with no technical underpinning of why the works belong under P1 rather than P2 (or another sub-category)? That is no defence in the sense of accreditation case-law — the Council will, in extreme-urgency proceedings, accept a serious presumption of carelessness.
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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 →