Hide your previous terminated contract and you lose the next one too — even if you're contesting that termination in court
The Council of State refuses to suspend the exclusion of an architectural firm by social housing company Toit & Moi based on an earlier contract terminated by another contracting authority (La Sambrienne), holding that the firm should have spontaneously disclosed the termination in its bid and submitted self-cleaning measures — even though it is contesting the termination itself before the ordinary courts.
What happened?
On 31 March 2021, social housing company Toit & Moi (Mons) launches a procurement procedure (negotiated, no prior publication) for architectural services covering the environmentally-friendly demolition of two residential towers (192 apartments), underground parking and roads at the Cité du Coq in Jemappes. The joint venture St.Ar.Tech — formed by Marcel Barattucci, engineer-architect & associates and Architecture & Création — submits a bid on 26 April 2021. On 9 September 2021 the architects receive a registered letter: their offer is excluded under Article 69(7°) of the Belgian Public Procurement Act of 17 June 2016 (optional ground for exclusion based on 'significant or persistent shortcomings' in a previous public contract), and the contract is provisionally awarded to R+ Architecture. The 'shortcoming' invoked is an earlier contract that St.Ar.Tech held in 2020 with another Walloon social housing company, La Sambrienne, for the second phase of the renovation of the Cité du centenaire in Montigny-sur-Sambre. La Sambrienne unilaterally terminated that contract on 10 March 2020 — three days before the COVID lockdown — citing four grievances: refusing to follow instructions, exceeding the budget, missing the SWL deadlines, and plans not complying with the regulations on adaptable housing for persons with reduced mobility. St.Ar.Tech disputes all of those grievances and has pending proceedings before the ordinary courts in which the termination itself is challenged. On 24 September 2021 St.Ar.Tech files an extreme-urgency suspension. At the hearing of 12 October 2021 it develops three principal pleas plus one new plea raised at the bar. The third plea — which the Council addresses in most detail — has three branches: (a) Toit & Moi should have asked for self-cleaning measures before excluding (citing CJEU case law requiring that any obligation of spontaneous self-cleaning be 'clearly, precisely and unambiguously' provided for in national law and clearly referenced in the tender documents); (b) Toit & Moi failed to investigate the facts itself and merely echoed La Sambrienne's findings; (c) the reasoning does not allow verification of whether Toit & Moi performed its own, proportionate assessment. The Council — through acting president David De Roy with concurring opinion of first auditor Constantin Nikis — rejects every plea. On the first branch: even assuming the rule that self-cleaning must be invited applies, the architects themselves failed to disclose at bid time that a prior contract had been terminated — which they should have done — and acknowledge in their petition that, owing to the conflict with La Sambrienne, they cannot present any corrective measures. So no prima facie damage. On the second branch: audi alteram partem does not apply directly here, and no principle obliges the contracting authority to make up, by its own investigations, for a tenderer's negligence. On the third branch: the Delta Antrepriză judgment (CJEU 3 October 2019, C-267/18) requires an own assessment — and Toit & Moi's reasoning shows that it did examine the facts, qualified them as 'significant shortcomings', and explicitly noted that the architects had not put forward self-cleaning measures. Second plea (disputing the underlying facts): that discussion belongs before the ordinary courts because it concerns performance of the Sambrienne contract, not before the Council of State. New plea raised at the bar (the awarded bidder is allegedly not selectable on the 'circular construction' criterion because it merely lists a BREEAM-certified subcontractor): admissible but not serious — Poly-Tech Engineering, R+'s subcontractor, appears on the official BREEAM list, and BREEAM training does cover circularity and material reuse aspects. Outcome: extreme-urgency suspension dismissed, immediate execution ordered, costs reserved.
Why does this matter?
Many companies that work with public clients eventually have a contract that ends badly: an early termination, a notice of default, a 'measure ex officio'. The reflex is understandable: stay quiet, contest, hope it stays under the radar at the next bid. This judgment shows how costly that reflex can be. A unilateral termination by a previous contracting authority is a potential ground for exclusion at every subsequent bid — across Belgium, not just with that particular authority. What you must therefore do yourself, spontaneously, is two things: (1) disclose the termination in every new bid, and (2) submit corrective measures showing the problem will not recur. If you do not, the contracting authority may exclude you without first asking for self-cleaning — and the Council of State will not suspend that exclusion. The practical trap: if you are challenging the termination itself in court, you cannot really propose 'corrective measures' since you maintain there was no shortcoming. But that very argument plays against you: saying 'I cannot offer self-cleaning because I did nothing wrong' means, according to the Council, that the exclusion has not caused you any material prejudice. For contracting authorities the lesson is at least as important: you may rely on another authority's termination, but you must assess the facts yourself — copy-pasting another file is not enough; you must show that you qualified the facts, weighed them against proportionality, and noted whether the tenderer presented corrective measures.
The lesson
If, in the past three years, you have had a public contract unilaterally terminated by the contracting authority or had an ex officio sanction imposed: disclose it yourself in every new bid, even if you are contesting the termination in court. Add a reasoned account of the corrective measures you have implemented — internal procedures, training, quality control, concrete personnel changes. 'I am contesting the termination' is not a substitute for a self-cleaning file; it is an additional burden. Waiting for the contracting authority to ask is unsafe: the Court of Justice accepts that an obligation of spontaneous disclosure can rest on the tenderer provided it is 'clearly, precisely and unambiguously' set out in national law — and Articles 69 and 70 of the Belgian Public Procurement Act of 17 June 2016 form, according to the Council of State, exactly such a clear framework.
Ask yourself
You are submitting a bid this week and you know that an earlier client has terminated your previous contract or sent you a notice of default. Does your bid contain a document that (1) factually discloses the termination, (2) sets out your version of the events, and (3) lists concrete corrective measures? If not, do that now — even if you are sure you were in the right.
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 →