A reference threshold that excludes 6 out of 8 candidates is not automatically disproportionate
The Council of State rejects the action of cleaning incumbent Misanet against its exclusion at the selection stage, because requiring three cleaning references for buildings with intermodal transport hubs of at least 30,000 persons per day is properly linked and proportionate to the subject-matter of the contract — and because a non-selected bidder has no standing to challenge the award itself.
What happened?
The Brussels Capital Region tendered the cleaning of the public and common zones of the CCN building — the Communications Centre North — in Brussels. The building hosts Brussels-North railway station, pre-metro and tram stops, a bus terminal, a taxi rank, a shopping arcade and the regional government offices. The specifications contained a strict technical selection criterion: three references for cleaning contracts in 'mixed buildings with an important inter- and multimodal transport hub, with a high passenger frequency (at least 30,000 persons per day)' on surfaces of at least 20,000 m². Misanet — the incumbent — submitted seven references, but only two met the strict requirements. Six of eight candidates were not selected. On 18 July 2017 Misanet learned from the building's co-ownership association that it had not been selected; the contract went to Jette Clean. Misanet went to the Council of State with two grounds. First: the 30,000 persons/day criterion is not 'linked and proportionate' to the subject-matter and distorts competition; furthermore Misanet, as previous contractor, had proven it could perform. Second: there was no price verification; the winners would not respect the minimum wages of joint committee 121 nor the minimum hours under the UGBN cleaning cadence standards. The Council rejects both grounds. On the first: article 58 of the Royal Decree of 15 July 2011 grants the contracting authority 'a wide margin of appreciation'. The CCN hosts the country's second-busiest station (>58,000 commuters/day) plus many other users — the 30,000 persons/day threshold is therefore 'notoriously known' to be realistic and tied to the specific nature of the building. The fact that Misanet had performed the previous contract well does not prevent the authority from choosing stricter or different criteria for a new contract — especially when 'the description of tasks and technical execution clauses have been completely reshaped'. Six out of eight candidates being excluded does not in itself prove disproportionality or competition restriction. On the second ground the Council deploys an important procedural reasoning: article 14 of the 17 June 2013 Act renders the action admissible ratione personae for any person interested in the contract and at risk of being harmed. But 'interest in the ground' (interest in the specific argument) presupposes a 'lésion'. Since Misanet was lawfully excluded at the selection stage, the alleged illegalities of the price verification cannot harm her — she would not get the contract anyway. The second ground is thus inadmissible. Action rejected, Misanet pays €700 procedure costs to the Region.
Why does this matter?
For bid managers this is a double wake-up call. One: a contracting authority can perfectly tighten selection criteria from one contract to the next — even if you executed the previous one well. Thresholds will be upheld as long as they are motivated by the specificity of the contract. If you want to challenge a threshold as discriminatory, do so before submission (by questioning the authority or suspending the specification) — not after exclusion. Two: once you've fallen at the selection stage, you cannot complain about the award assessment. 'Interest in the ground' requires a lésion: if you weren't going to win anyway, no later illegality can have harmed you. For contracting authorities the case confirms that strict but motivated technical reference requirements are not automatically struck down by the Council of State, even when they drastically narrow the field.
The lesson
Want to challenge a strict selection criterion? Do it before submitting your bid — write to the authority, request justification or take the specification to the Council of State. Waiting until after exclusion is too late: you can still challenge the criterion, but if the Council accepts it, you automatically also lose standing to say anything about the award. For contracting authorities: don't be afraid to write strict selection criteria — but make sure they are motivated by the specific nature of the contract and document where the thresholds come from.
Ask yourself
Before submitting: compare the selection criteria of the current specification with those of similar previous contracts. Are they suddenly stricter (higher thresholds, different reference types, shorter lookback period)? Then immediately request justification in writing — waiting until after exclusion makes challenging much harder.
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 →