Compensating an expired VCA certificate with an ISO certificate you'll only receive two months later? RESA lost the award
The Council of State suspends the Liège grid operator RESA's selection and award of a tree-pruning contract to Bois & Travaux because, on the application deadline (4 August 2021), Bois & Travaux had neither a valid VCA certificate — it had expired seven days earlier — nor the 'equivalent' ISO 45001:2018 certificate, which it would only obtain on 4 October 2021.
What happened?
RESA Innovation et Technologie, acting for Liège grid operator RESA, ran a negotiated procedure with publication for a tree-pruning contract along high-, low- and street-light power lines in Liège province. The contract was split into four lots. Selection criteria included a VCA certificate (* or **) 'in accord with the way the candidate intends to perform the contract', and a DUME declaration of compliance with the selection criteria. Nine candidates applied by the 4 August 2021 deadline, including Jardin d'Ô and Bois & Travaux. RESA selected Bois & Travaux and awarded lots 1 and 3 to it on 23 March 2023. After Jardin d'Ô flagged that Bois & Travaux's VCA had expired on 28 July 2021, RESA explained on 5 April 2023 that it had relied on Bois & Travaux's ISO 45001:2018 certification — which had in fact only been issued on 4 October 2021. RESA withdrew the entire chain on 19 April 2023, ran a new analysis, and reselected Bois & Travaux on 12 July 2023 and re-awarded on 13 September 2023 (this time, lot 2 went 70% to Bois & Travaux and 30% to SFR Massin). Jardin d'Ô filed a fresh extreme-urgency suspension. RESA and the intervener Bois & Travaux argued that 'in accord with the way it intends to perform the contract' meant that the requirement only had to be met at performance, citing arrest 240.473 (17 Jan 2018) on environmental management measures. Alternatively, they argued that Bois & Travaux was already in a state allowing it to be ISO-certified on 4 August 2021. The VIth chamber rejected both. Nothing in the tender language said selection criteria did not have to be met by the application deadline; the DUME, by which candidates declared compliance, only made sense as a present-tense declaration. Reading the text otherwise would breach the transparency principle of article 4 of the 2016 Act. On 4 August 2021 Bois & Travaux had neither a valid VCA nor an ISO 45001:2018 — being 'eligible' for ISO is not the same as having it. The selection of 12 July 2023 and the award of 13 September 2023 are suspended, with immediate execution.
Why does this matter?
Two-way warning. For bid managers: count back from the deadline to when your certificates expire — a VCA expiring one week before the deadline is as fatal as one expired a year ago. An ISO audit 'completed by date X' but 'formalised on date Y' counts only on date Y. For contracting authorities: language like 'in accord with the way the candidate intends to perform' does not shift the assessment date. The DUME is not a future-promise; it is a present-tense declaration, and it only makes sense if it tests against present-tense facts.
The lesson
As a candidate: check the expiry dates of all required certificates at least three months before any application, and plan recertifications around it. If you're in transition between certificates, make sure either the old is still valid on the deadline or the new is effectively issued by then — 'final audit completed' is not enough. As a contracting authority: state clearly in the tender notice when a selection requirement must be met (e.g. 'at the application deadline'). If you want a requirement met only at performance, say so explicitly. 'In accord with the way it intends to perform' does not change the test date.
Ask yourself
If I submit my application today: do I already hold all the required certificates, with a validity period covering today? Or am I sending an audit attestation hoping it counts as proof of holding?
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 →