A reference 'does not belong to the candidate' — that line alone is not enough to exclude a firm relying on its founder's past role
The Council of State suspends the City of Tournai's non-selection of architecture firm SEA for the passerelle de l'Arche tender because the motivation — two references (La Belle Liégeoise, l'Enjambée in Namur) are in Greisch's name and therefore do not belong to SEA — does not allow verification whether the City held that founder V.S. cannot rely on those references, or that SEA cannot rely on the professional experience acquired by one of its founders at another firm.
What happened?
As part of modernising the Scheldt crossing in Tournai, the Walloon Region plans to replace the 'passerelle de l'Arche' with a new cycle/pedestrian bridge. The City of Tournai acted as agent in a joint contract with the Walloon Region, advised by the Architecture Cell of the French Community. On 22 February 2021, the City Council approved the selection guide and selection requirements for a 'project author' contract (study + execution oversight), estimated at EUR 260,000 excl. VAT, via competitive procedure with negotiation. The notice required, for minimum capacity in architecture, at least one delivered reference of a contract with works of at least EUR 1,000,000 excl. VAT — and that reference 'must belong to the economic operator'; same for stability, with a reference to an aerial structure with span > 15 m. For limiting the number of candidates (max 5), three criteria applied, including criterion 3: 'relevance and quality of three references chosen by the candidate'. Crucially, 'must belong' was not repeated for criterion 3. The SEA/L'Escaut group submitted three references for criterion 3, two of which — La Belle Liégeoise and l'Enjambée à Namur, both pedestrian/cycling bridges — had been executed by Bureau d'Études Greisch. SEA stated they had been 'realised by [V.S.] within Greisch as designer/Project Director'. V.S. is a former Greisch director (worked ~1,000 of 16,000 hours on La Belle Liégeoise; 500 of 7,600 on l'Enjambée) and is now founder and director of SEA. On 8 July 2021, on jury proposal, the City decided not to select SEA/L'Escaut, motivated by the fact that two of the three criterion-3 references 'do not belong to the candidate; they are in the name of Greisch'. SEA/L'Escaut filed an extreme-urgency suspension on 30 July; Canevas and Greisch — selected with those same references — intervened. The Council draws an important distinction: for the minimum thresholds (seuils minimaux) the notice explicitly requires 'belonging' — stricter than the law, even excluding capacity from another group member. For criterion 3 the explicit 'belonging' condition is NOT in the notice. Annex 2 only requires the candidate to identify, per reference, which 'economic operator(s) of the candidate group' were involved, their 'role', and the share of works for which they delivered services. It follows that for criterion 3, an economic operator must at minimum have 'performed services', 'played a role' or 'delivered work' within the reference. The City was thus required to assess whether SEA, under criterion 3 as defined in annex 2, could rely on services performed by one of its founders while at another economic operator — and to record that assessment in its formal motivation. The given motivation ('two references are in Greisch's name') does not allow understanding whether the City held (a) that V.S. cannot invoke those references, or (b) that SEA cannot invoke the experience acquired by one of its founders at another entity. That distinction is crucial; the City did not address it. Subsequent developments in the City's defence brief cannot cure the gap. The motivation-defect branch of the second plea is well-founded. Suspension granted.
Why does this matter?
Belgian case law is strict about reference 'ownership': a reference belongs to the legal entity that performed the contract, not its employees or directors, and does not follow them when they move (Artbel ruling 2012). This seems heavily disadvantageous to architects, engineers or consultants who launch their own firm. This ruling nuances: the strict regime applies to minimum thresholds where the notice explicitly demands 'belonging'; for criteria framed more weakly (such as a 'limitation criterion'), the contracting authority must analyse case by case whether the candidate can rely on a role through its founders or staff. Systematically rejecting all references of newcomers without that analysis risks annulment for defective motivation. For architects and consultants this is operationally relevant: at a new firm, founders' experience at a previous practice can sometimes be invoked — when the tender wording allows it. Read the notice line by line before discarding a reference or building one around it.
The lesson
Contracting authority: distinguish in your notice between minimum thresholds (where you can explicitly require 'belonging' of the reference — stricter than the law) and limitation criteria (where the law requires only 'demonstrated capacity'). If you have NOT included the 'belonging' requirement verbatim for the limitation, you cannot exclude a candidate solely on the argument 'the reference is in another firm's name'. Investigate whether the candidate can rely on a role or service via one of its staff or founders, and explicitly motivate your judgment. Architecture/consulting firm: when staff move between firms, build a file documenting hours, role, scope and supporting evidence per project (internal project sheets, completion certificates naming the individual). That file is your leverage when a limitation criterion does not explicitly require 'belonging'.
Ask yourself
Contracting authority: read your non-selection decision and ask — did I concretely investigate whether the candidate can rely on the experience of a founder/staff member at another entity, and did I record that investigation in my motivation? If not, vulnerable to suspension. Bidder: before invoking a reference not in your firm's name, carefully check (a) what the notice exactly says for the relevant threshold or criterion, and (b) which share of the works (hours, role, phase) you can effectively document — build a small attestation around it.
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 →