If you allow Art. 66 §3 supplementation of references, your motivation must show that the supplement actually meets the threshold
The Council of State annuls the award of the Charleroi maintenance contract for high-voltage cabins because the city let two competitors complete their qualitative selection file but failed to show in its motivation that the supplemented references actually reach the required threshold of 50,000 € HT per year.
What happened?
In March 2018 Charleroi publishes a European notice for 'maintenance of HV cabins and quarterly visits' — an open procedure, lowest price. The specifications require three references of similar services, each of at least 50,000 € HT per year. Three offers are received, including Biuso (applicant), DNP Électricité (eventual winner) and Jacops. The selection files of DNP and Jacops are incomplete; on 28 May 2018 Charleroi sends Art. 66 §3 clarification letters asking for a list of at least three matching references. Both reply. The analysis report notes laconically that 'the minimum threshold is reached' and the contract is awarded to DNP on 21 August 2018. The Council scrutinises what the supplemented attestations actually say. For DNP, the 'missing attestation' covers 55,000 € HT but DNP itself notes in its cover letter that the share of HV maintenance is 'normally 95% but tending towards 80%'. With a ratio between 80–90% on a contract that covers both 2017 and 2018, the maintenance portion does not reach 50,000 € per year. The motivation says nothing about this. For Jacops, of three submitted attestations two cover medium voltage rather than high voltage. Charleroi accepts only one — but the specifications require three. Moreover the one accepted attestation covers four years for a total of 91,572.05 € — well below 50,000 €/year. The Council declares the second branch of the plea well founded and annuls the award.
Why does this matter?
Art. 66 §3 is a useful tool that prevents good candidates from falling out on formal defects. But the flip side, illustrated here: an authority that uses it must show in its motivation that the supplemented documents actually meet the threshold amount and the number of references required. A simple 'threshold met' line is not enough — especially when the bidder himself adds nuances in his reply ('normally 95% but tending towards 80%').
The lesson
If you allow an Art. 66 §3 supplementation, do the maths in your analysis report — not just in your head. Which years, which share falls within the object of the specifications, what amount per year? Write it out. Three attestations means three, not two plus 'clear experience'. If the bidder himself mentions percentages or nuances in his reply letter, pick them up in your motivation and explain why the threshold is still met.
Ask yourself
For every positive selection after an Art. 66 §3 request: have I written down, per attestation, (1) the percentage of the service that falls within the contract's object, (2) the amount it yields per year, and (3) whether the number of attestations matches the specifications?
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 →