When lots are involved, the contracting authority may require references to fit the lot — even if the specifications do not say so explicitly
The Council of State refuses to suspend Spa-Francorchamps' decision not to select TPRecup for lots 1 (track maintenance) and 2 (cleaning of internal roads), holding that it is reasonable to require references relevant to the specific lot — even where the specifications do not differentiate between lots.
What happened?
The Circuit of Spa-Francorchamps, a Walloon public-law company, launched on 18 November 2022 a European tender for maintenance services of its infrastructure, divided into three lots: lot 1 'track maintenance', lot 2 'cleaning of internal roads (paddocks, pitlanes, parkings, roads and stands)', and lot 3 'waste collection, waste treatment and emptying of septic tanks'. Duration: 1 year with three tacit renewals. Total above European threshold (for lot 3 alone €524,010 per year excl. VAT, €2,096,040 with renewals). Selection criterion n°1 on technical capacity was: 'A list of the principal services provided in the past three years, indicating the amount, the date and the public or private recipient.' Minimum threshold: 'At least 3 references of €25,000 each, or 4 references of €18,750 each.' The specifications added: 'Selection criteria apply to all lots.' TPRecup submitted offers for all three lots. With its offer it joined 7 of its own references (mainly for SOFICO — sweeping and flushing) and 12 references from its 50%-shareholder Theis Marcel. Spa-Francorchamps selected TPRecup for lot 3 (waste), but excluded it for lots 1 and 2 because 'only a list of references from subcontractor Theis Marcel was provided' and because those references concerned only sweeping and flushing for SOFICO — not track maintenance or cleaning of internal roads. Lots 1 and 2 went to Remondis (€770 procedural costs awarded). TPRecup argued before the Council of State: the specifications did not require a specific link between references and the content of each lot; its 7 own references formally met the thresholds (3×€25k or 4×€18.75k); and by nonetheless requiring this, Spa-Francorchamps had added 'a new requirement during the analysis of offers', in breach of the patere legem principle. The Council holds that the contracting authority did NOT add a new requirement: in a tender with lots that have distinct subject matter (track maintenance is something other than waste collection), selection criteria must allow verification that the bidder can execute each lot for which it tenders. A 'principal service' must therefore 'relate to the subject of the lot concerned' or be 'adequate' within the meaning of art. 68, §1, paragraph 2 of the Awarding Royal Decree 2017. The analysis of Spa-Francorchamps — that sweeping/flushing references are not relevant for track maintenance — contains no manifest error of appraisal. Application rejected.
Why does this matter?
For bidders with a broad service portfolio this is a warning: a single general reference list across all lots is a risk. What formally meets the threshold may substantively fall short per lot — even where the specifications do not explicitly require the link. For contracting authorities this confirms that the reasonable interpretation 'references must fit the lot' holds, provided the reasoning is carefully built up: examining per lot which references concern which specific subject. This ruling is best read together with ruling 256143 on the same tender — there Remondis was NOT excluded for lot 3, because its 'container collection and waste treatment' references were prima facie relevant for 'waste collection and emptying of septic tanks', even though the latter was not explicitly in its references.
The lesson
As a bidder in a tender with lots: build a reference list per lot. Indicate for each reference which type of service it concerns. Do not rely on 'the specifications do not require a link' — the Council accepts that contracting authorities expect 'pertinent' references. As a contracting authority: even if your specifications say 'the selection criteria apply to all lots', you may reasonably require references to relate to the subject of each lot — but watch equal treatment: apply the same standard to all bidders, otherwise you breach the equality principle.
Ask yourself
Does every reference in your offer for a tender with lots have a clear link to the subject of the specific lot? Or are you putting everything on one heap and hoping the contracting authority does the matching for you?
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 →