Selection criterion '3 references on non-navigable waterways' for an earthworks contract: not disproportionate, even if <1% of the work touches the waterway itself
The Council of State rejects TRBA's challenge against its exclusion from a Walloon contract for the construction of a retention zone on the Senne, and confirms that a selection criterion requiring 'references on non-navigable waterways' is not disproportionate when the contract is executed in such a geographical context — and that bidders must explicitly demonstrate in their offer that their references meet the criterion.
What happened?
In March 2018 the Walloon Region tendered improvement works on the Senne river at Tubize, under the European LIFE Belini project: construction of a retention zone with hydromorphological landscaping. Open procedure. The technical capacity selection criterion required 'evidence of three works of at least 165,000 euros excluding VAT each on non-navigable waterways during the last 5 years'. Five offers were submitted; TRBA was excluded because only one of its three references qualified. On 18 July 2018 the contract was awarded to SPRL ETH for 181,390 euros excl. VAT. TRBA challenged the exclusion. First plea: the Estaimpuis (on the Esperlion) and Kain (on the Rieu de Maire) references did concern non-navigable waterways — identifiable in the Walloon Region's own atlas. Second plea: the criterion was disproportionate because actual 'in contact' works represent less than 1% of the contract value, making this in reality a routine earthworks contract; only 2 out of 5 bidders qualified. The Council rejects both pleas. First: TRBA's offer did not explicitly state that the Estaimpuis and Kain works were on non-navigable waterways. The contracting authority is not required to consult its own atlas or recognise this from the recognition categories. Bidders must demonstrate compliance themselves, clearly and precisely, in the offer. The grievance 'they should have asked me to clarify' was raised only in the reply brief — too late, inadmissible. Second: the contract is described as 'improvement works on a non-navigable waterway of category 1'. The selection criterion is clearly linked to that subject and the geographical execution context, even if the direct contact percentage is small. Article 71 of the 2016 Public Procurement Act gives contracting authorities broad discretion over selection criteria; the Council only sanctions manifestly disproportionate criteria. Appeal rejected, 700 euros procedural costs.
Why does this matter?
Two very practical lessons. One: for any selection criterion referring to 'similar' works or contexts, your offer must explicitly demonstrate — not assume — that your references qualify. The contracting authority has no duty to dig into its own registers or to ask for clarifications. Two: if you want to argue 'the authority should have asked me', raise it in the initial request, not in a later brief. For contracting authorities, the judgment confirms that a 'contextual' selection criterion (geographical environment, infrastructure type) is defensible even if the actual specific work represents a small fraction of the contract.
The lesson
As bidder: for every selection criterion referring to a specific type of work, context or object, write a short explicit justification per reference: 'these works were carried out on the Esperlion, a non-navigable waterway of category 2 according to the Walloon Region's atlas, for X euros'. Don't rely on interpretation or goodwill. As contracting authority: a selection criterion referring to the execution context is defensible even when the direct 'core' performance is limited. Choose your wording carefully: 'works on a waterway' is different from 'works in contact with a waterway' or 'works within a waterway perimeter'.
Ask yourself
Were you excluded on a selection criterion referring to a specific work type or context? Open your offer. Did you explicitly state for each reference that it meets the criterion, with the exact classification? Did you raise the grievance 'the authority should have asked me' in your initial request, or only in a later brief? If you only notice now that you didn't include it: too late — it will be declared inadmissible.
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 →