Three references that together cover all disciplines — not enough when the selection guide says 'both … and …'
The Council of State suspends the selection of KRAS Architecten because the municipality of De Pinte 'added up' disciplines from three different reference projects, while the selection guide explicitly required each reference to cover all disciplines on its own.
What happened?
The municipality of De Pinte launched a sizeable study assignment in March 2023 for a masterplan covering a primary school, a sports hall and a youth centre. Four teams applied through the negotiated procedure with prior call. The selection guide required, in addition to a masterplan reference, 'two reference projects of an equivalent school building' worth at least €2.5 million each — and crucially: 'both for the disciplines of architecture, stability, techniques, EPB and landscaping'. After withdrawing its first selection decision, the municipality decided on 7 July 2023 that only the KRAS Architecten team would be selected. Two unsuccessful candidates challenged this before the Council of State. The assessment sheet for KRAS showed that the firm had submitted three references for the required two equivalent school buildings. The first covered architecture, stability, techniques and EPB — but not landscaping. The second covered only architecture. The third covered stability, techniques and EPB — but not architecture. None of the three covered all disciplines on its own. The municipality had in fact 'added up' the disciplines across the three references to conclude that KRAS met the requirement. At the hearing, the municipality declared it would 'rely on the wisdom of the Council of State' — it had filed no defence. State Councillor Bert Thys ruled that the selection criterion allowed only one reading: 'both … and …' is cumulative, meaning each reference project must on its own cover all listed disciplines. By adding them up, the municipality breached its own selection rules — a violation of the principle patere legem quam ipse fecisti. An interesting side note: the applicants' second ground — that their own reference 'School Balder in Brussels Saint-Gilles' had wrongly been rejected — was not deemed serious. They had done the architecture but stability, techniques and EPB had been carried out by subcontractors (UTIL, SB Heedfeld, Studiebureel Greesa) who are not in the current bid consortium (now CBAM engineering). They could not therefore claim those disciplines as their own. The Council of State suspends the selection.
Why does this matter?
Two practical lessons from one judgment. For contracting authorities: the way you draft your selection criteria determines what you may accept later. Write 'both … and …' (cumulative) and you cannot 'add up' disciplines from different references — even if the sum neatly covers all areas. Want that flexibility? Write it explicitly into the guide. For bidders: you may only claim a reference for the disciplines you (or a current consortium partner) actually delivered. If a former subcontractor handled certain disciplines and is no longer with you, those disciplines are not yours.
The lesson
When you draft a selection guide requiring a fixed number of references that must cover 'both architecture, stability, techniques, EPB and landscaping', each reference must on its own cover all those disciplines. You cannot later add up disciplines from three separate references — that breaches your own selection rules. If you want that aggregation logic, write it explicitly. As a bidder: build your reference portfolio around projects you delivered integrally, or make sure your former partners on those disciplines are still with you.
Ask yourself
If as a contracting authority you find that the only remaining candidate covers all required disciplines only by aggregating across multiple references: can you still legally motivate that under your selection guide's wording, or does your guide expressly say each reference must cover all disciplines? When in doubt, the Council of State will likely overturn you on patere legem quam ipse fecisti.
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 →