A forgotten check of exclusion grounds for company directors can be cured during the proceedings — stripping the applicant's interest in the ground
The Council of State rejects the suspension of a 59 million euro framework agreement for fibre to Flemish schools, where the applicant discovered that the contracting authority had only requested the criminal record of Telenet as a legal entity, not of its directors as required by article 67 §1 paragraph 5 — but the authority had since obtained those extracts during the proceedings, depriving the applicant of its interest in the ground.
What happened?
The Flemish Community (Education department) had in 2021 launched a first contract for 'provider and internet services for Flemish education institutions', divided into three lots. By decision of 29 July 2021, lots 1 and 3 went to Telenet and lot 2 to Eurofiber. Academic Software (an EdTech firm) immediately appealed; arrest no. 251.423 of 6 September 2021 suspended the award. On 22 September 2021 the Flemish Community withdrew the award and stopped the procedure. A second procurement was launched, this time for the fibre lot only, called 'Fiber To The School (FTTS)' — a framework agreement with estimated maximum value of 59.2 million euros excl. VAT, published nationally and at EU level. Two bidders: Academic Software and Telenet. On 2 February 2023 the contract went to Telenet. Academic Software filed an extreme-urgency suspension with five grounds. The Council of State rejected all five. The most instructive is the fifth, raised for the first time at the hearing (so possibly out of time). Academic Software found that according to the email exchange of 22 and 28 November 2022, the contracting authority had requested only 'a' criminal record extract — presumably that of Telenet as a legal entity — whereas article 67 §1 paragraph 5 of the 2016 Act, for contracts above the EU thresholds, also requires verification of extracts for members of the administrative, management and supervisory bodies, and persons with representation, decision or control powers. The Council of State acknowledged: 'It appears from the administrative file that the defendant had not, prior to the award decision, verified the mandatory exclusion grounds for the persons who are members of the administrative, management or supervisory body of the chosen bidder.' But — and this is the heart of it — the defendant had since obtained those extracts and added them as a new confidential piece to the administrative file. They showed that none of the directors was in an exclusion situation. 'As a result of obtaining those documents, the applicant appears to have lost its interest in this ground.' Fifth ground not serious. None of the other grounds — including over the connectability declaration for 12 specific schools that according to Academic Software could not be connected at the offered installation price, and the absence of price differentiation in the specifications — was serious. Suspension denied.
Why does this matter?
Two very practical lessons for both contracting authorities and bidders in large European contracts. One: article 67 §1 paragraph 5 is often forgotten or sloppily applied. For contracts above the EU thresholds, the authority must request a criminal record extract not only for the chosen bidder as a legal entity, but also for ALL members of the board, management, supervision AND for persons with representation, decision or control powers. This is not a formality — it is a mandatory check. For bidders this is a low-cost ground to investigate: in an application, request access to which extracts were obtained; if any are missing, you have a ground. Two: but the ruling also exposes the limit. The contracting authority can cure that omission during the proceedings by obtaining the missing extracts. If they are clean, you lose your interest in the ground. Strategically: a ground over missing criminal record extracts is strong but becomes weak as soon as the authority can show that the omission would not materially have led to exclusion. For authorities the message is pragmatic: if you forgot, fix it as quickly as possible and add the extracts to the administrative file — before the hearing.
The lesson
If as a contracting authority you award a contract above the EU threshold, before the award decision request criminal record extracts NOT only for the chosen bidder as a legal entity, but also for EVERY member of the administrative, management and supervisory bodies, and for everyone with representation, decision or control powers. Document who you identified and which extract you obtained. If an applicant in proceedings raises this omission, your best defence is to cure it during the suspension proceedings — request the extracts, check they are clean, and add them to the file before the hearing. As an applicant, raise this ground early in your application: a ground raised late (at the hearing) is procedurally vulnerable and gives the authority time to fix.
Ask yourself
For your last contract above the EU threshold: did you request criminal record extracts for EVERY director, manager, delegated administrator, and all natural persons with representation, decision or control powers at the chosen bidder? Did you note this in the award report? Threshold: a single extract for only the legal entity is insufficient for contracts above the EU thresholds. If in doubt: request the extracts before final award or, in case of dispute, before the hearing.
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 →