An 'analogous contract' is not automatically a 'public contract', and calling a bid 'irregular' without examining the substantial nature of the irregularity is not a reasoning — Vivalia sees its award suspended
The Council of State suspends Vivalia's decision to exclude C-Consult Advice from its RHM software contract because Vivalia added two conditions that were not in the tender — references had to come from public (not private) contracts and could not concern a software update — and, on the irregularity ground, did not examine whether the irregularity was substantial, with reasoning resting on undocumented phone calls absent from the administrative file.
What happened?
Vivalia, the intercommunal operating the public hospitals in the province of Luxembourg, used C-Consult Advice's RXM software for the RHM reporting (Résumé Hospitalier Minimum) at two of its three sites (Marche-en-Famenne and Arlon). On 5 August 2022 C-Consult emails Vivalia: 3M has announced that, from 1 January 2023, its DRGfinder will no longer support Internet Explorer — Vivalia's current RXM version will then no longer compute APR-DRG. C-Consult offers an upgrade to RXMonWeb for the two existing sites and an attractive offer for the third site (CHA). On 28 September 2022 C-Consult confirms by email: from 1 January 2023 APR-DRG calculation is indeed no longer possible in RXM. Vivalia therefore decides to launch a public contract. On 17 October 2022 the Director-General approves the tender documents; the contract is published in the Bulletin of Adjudications on 19 October 2022. Object: 'supply and installation of an RHM software, together with maintenance and training for use over 3 years', for the three sites (CSL, Marche, CHCA Libramont+Bastogne). Procedure: direct negotiated with prior publication. Selection criterion 2.8.2.b 'technical capacity' (referring to Article 68 of the 18/04/2017 decree): 'The bidder shall provide the list of the main analogous supply contracts won and performed over the last three years. (…) Minimum required: at least 2 references of analogous supply contracts (certificates of good performance) of at least 30,000€ excl. VAT.' On the forum C-Consult asks twice whether order forms and certificates for upgrades of existing licences suffice; Vivalia answers each time that the public procurement legislation applies and that 'certificates of good performance' must be filed with the bid. Two bids come in: SBIM on 9 November, C-Consult on 14 November 2022. On 21 November 2022 the Director-General awards to SBIM for 249,871.66 EUR incl. VAT. The reasons for excluding C-Consult are only notified on 12 January 2023: it is 'not selectable' because its certificates 'were not awarded through a public procurement procedure' and 'do not concern the supply and installation of software at all' (it would only be a mise à jour of existing RXM); additionally — as a secondary ground — its bid would be irregular because it 'imposes its own delivery deadlines' of 4 months instead of the 30 calendar days plus 1 month of training in the tender. On 27 January 2023 C-Consult files an extreme-urgency suspension and annulment request. The Council groups four pleas into three clusters. First cluster — non-selection (first, third and fourth branches). The Council unpacks the selection criterion in light of Article 68 § 1 and § 4 of the 18/04/2017 decree. § 1, second sub-paragraph: 'the contracting authority may in particular require operators to dispose of a sufficient level of experience, demonstrated by adequate references stemming from previously executed contracts'. § 4 spells out the evidence: 'a list of the principal supplies effected (…) indicating amount, date and the public or private recipient'. Conclusion: 'previously executed contracts' covers both public and private orders. The tender — merely paraphrasing Article 68 — nowhere requires the certificates to come from public procurement contracts. Vivalia's motivation ('dossiers not passed through a public procurement procedure') adds a condition not present in the tender. Prima facie inadequate. Second question — 'analogous supply' versus 'mise à jour'. The tender requires two certificates for 'analogous supplies' without further specification. The Council: an upgrade software must also be supplied and installed; the 'acquisition' Vivalia insists on relates to the obtaining of user licences — nothing rules out that the supply of an upgrade software requires licences and installation too (plus maintenance and training costs). It is not credible that an upgrade certificate cannot be an 'analogous supply'. The motivation on this point further rests solely on 'phone calls' between Vivalia and the authors of the certificates — the administrative file contains no trace of those calls. The 23 and 30 January 2023 emails Vivalia produces post-date the contested decision and do not confirm any prior phone contact. The 30 January 2023 email merely mentions a 'software installed (…) replacing RXM installed at the clinic for over 15 years' — that response is not enough to substantiate that upgrade ≠ supply. Motivation inadequate. Vivalia also argues that C-Consult had shown on the forum that it understood the requirements and therefore has no interest in this plea. The Council: that C-Consult perceived difficulties does not remove its interest in challenging the motives of the contested decision. Plea serious. Second cluster — irregularity of the bid (deadlines). The contested decision does not conclude that the bid is excluded for substantial irregularity — it only states that C-Consult is 'not selectable'. A contracting authority faced with an irregularity must examine it, qualify it as substantial or not, draw conclusions, and motivate them in the award decision. Here the motivation contains no examination of the substantial character. Later clarifications in the note of observations cannot supplement the motivation of the contested act. The 'irregularity' motive is thus not a 'decisive motive' — suspension can already be ordered on the basis of the inadequate motivation around non-selection. New pleas raised at the hearing (SBIM's 'zero' price on one item, oral regularity check) need no further examination. Conclusion: suspension of the contested decision ordered. Immediate execution ordered. Costs reserved.
Why does this matter?
This ruling pins down two common contracting-authority mistakes — together they form a pattern. Mistake one: paraphrasing a selection criterion from the decree and then applying stricter conditions in the award reasoning. Article 68 of the 18/04/2017 decree is explicit: 'public or private recipient'. Copying that criterion into your tender and then suddenly reading 'public contracts only' into it at the screening stage breaches patere legem and treats bidders unequally. For bid managers: if you see an award where the authority is stricter in its motivation than its tender permits, frame that gap sharply in a suspension request — the Council follows tightly. For authorities: if you really want only public contracts as references, write that into the tender — not the rejection letter. Mistake two: calling a bid 'irregular' without formally examining whether the irregularity is substantial. Article 76 of the decree and Article 83 of the 2016 Act require that second step: qualification of the substantial nature, then conclusion to exclude. An authority merely stating 'imposes deadlines of 4 months instead of 30 days' without explaining why this is substantial and how it affects competition or the stipulated conditions, has not motivated properly. On oral motivation: the ruling is crystal-clear. Phone calls not documented in the administrative file cannot serve as valid motivation. Anyone relying on a telephone verification must make a note — dated, named, briefly recorded — and have it form part of the administrative file before the award decision. A motivation resting solely on undocumented oral contacts hands the opposing party a suspension ground.
The lesson
If you want to exclude a bid for irregularity, motivate in two steps that are visibly traceable in the administrative file. Step one: identify the irregularity concretely. Step two: qualify it as substantial or non-substantial under Article 76 of the 18/04/2017 decree or Article 74 of the special-sectors decree — and give your reasons (discriminatory advantage? comparability hindered? engagement uncertain?). And if you base your decision on phone verifications, make written notes before the award decision and archive them in the administrative file — otherwise you'll stand empty-handed later. For bidders: always check whether the award motivation contains conditions not flowing from the tender. If the authority writes 'your references were not awarded through a procurement procedure', verify whether the tender even required this. Often it didn't — and that is a suspension ground.
Ask yourself
For your last rejection letter: can you point to which exact tender clause is breached by each rejection ground, and quote it word-for-word? If not, you probably added conditions that weren't there. And for every mention of 'irrégulière' or 'irregular': have you explicitly explained why the irregularity is substantial within Article 76 of the classic-sectors decree or Article 74 of the special-sectors decree? A bare mention without qualification is not a motivation.
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 →