Same ADN certificate: 'extra experience' for the winner, ignored for the loser — that doesn't hold
The Belgian Council of State suspended an award by Flemish Waterways because in the quality criterion motivation, the same elements (an ADN certificate, government experience, examination committee work) counted positively for one bidder and were ignored for another, without anywhere explaining the difference.
What happened?
De Vlaamse Waterweg NV (DVW), the Flemish Waterways agency, tendered a framework agreement for hiring experts to support its powers regarding ADN — the European agreement on international transport of dangerous goods on inland waterways. Tender AST-22-0011, open procedure, 4 lots. For lot 2 ('ADN expertise'), DVW wanted up to 4 contractors in cascade. Two award criteria, 50 points each: price and expert quality. Four bidders; one provisionally not selected. The remaining three: - Projectwerk bv (expert: Kristof Roggeman): price 50/50 + quality 20/50 = 70 - Vanhaecke Guy: price 36.74 + quality 50/50 = 86.74 (rank 1) - Waterways Assistance bv: price 38.41 + quality 45/50 = 83.41 (rank 2) Projectwerk thus came third — within the cascade, but commercially less attractive. Striking: Roggeman has 8 years of experience at FOD Mobility/Shipping Control ADN (2006-2015) and then 4 years inside DVW itself (2015-2019). He was an alternate member of the Belgian examination committee for ADN certificates, sat on the dangerous goods committee at the CCR in Strasbourg, and represented Belgium at UNECE in Geneva — where the 2019 ADN amendments were prepared. DVW's motivation is harsh on Roggeman: 'no demonstration of further training after 2019 in ADN'; the experience is 'only government experience'; 'the minimum requirements are not exceeded'; the case study is 'too theoretical and not in-depth'. Result: 20/50. For the winner (Vanhaecke), 'every five years he renews his ADN certificate (most recently 2019)' did count as proof of regular training. For Waterways Assistance, 'September 2022 ADN safety advisor training' counted as extra. Both got 50 or 45 out of 50. Projectwerk seeks emergency suspension and accuses DVW: the same elements are weighed positively for the winners and ignored or framed negatively for us. Roggeman also has his ADN attestations; his examination committee work is not mentioned; his UGent shipbuilding training and his load master experience at Zaventem airport are not weighed. The Council of State largely follows the petitioner. It is nowhere explained why Roggeman's government experience is 'less relevant' than experience elsewhere — especially when Waterways Assistance has worked since October 2019 as a subcontractor for DVW under a similar framework agreement, and that experience is counted. Not clear why a 5-year ADN certificate renewal counts positively for Vanhaecke and the same certificate for Roggeman doesn't. Other experience elements raised by Projectwerk (UGent, load master, examination committee) are not addressed in the decision. Later explanations in DVW's court submissions cannot repair these defects — 'a posteriori motivation'. DVW had argued it had to motivate concisely due to confidentiality of trade secrets (art. 10 Law 17 June 2013, art. 13 Law 17 June 2016). The Council rejects this: trade secrets are no licence to 'completely conceal the bids'. A summary motivation can reconcile confidentiality and the duty to motivate — but the summary must remain substantively consistent and concrete. Suspension granted.
Why does this matter?
For framework agreements with cascade and selection on expert quality (consultancy, advisory, specialised services), everything turns on the motivation of the quality criterion. This judgment establishes two hard principles relevant to many practical cases. One: equal elements must be valued equally — if an ADN certificate (or any qualification) is 'extra experience' for the winner, the same certificate for the loser must either also be extra experience, or there must be a very concrete explanation of why not. Two: business confidentiality is no joker to limit motivation to three sentences. For bid managers: rigorously compare your own narrative evaluation with the winner's — same qualification but different weighting = suspendable ground. For contracting authorities: an award report with the same structure for each bidder, explicitly stating 'for X this element does/does not count for the following reason', is far more robust than separate paragraphs per bid.
The lesson
If you score a bid low or exclude it for an element that brings another bidder to the top (same certificate, same type of experience, same training): explain in the contested decision itself — not in the court submission — why the difference. And if you fall back on confidentiality to motivate concisely: make sure that concise motivation remains substantively consistent across bidders.
Ask yourself
Take your award report and place the winner's evaluation next to a lower-ranked bidder's. Does the same qualification (certificate, years of experience, type of work experience) appear in both? If yes: are you weighing it equally? If no: does the report (not just your head) explain why the difference? If that explanation is missing: correcting now is cheaper than a suspension.
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 →