When a non-selection rests on multiple independent grounds, you must attack each — or your appeal is doomed
Flying Group Holding only challenged the optional exclusion ground about Chinese ties, but Defence had two other — unchallenged — grounds for non-selection, and those alone were enough to keep the decision standing.
What happened?
In December 2022, Belgian Defence launched a negotiated procedure for the BFTC contract: a service contract for basic pilot training at Beauvechain air base, eventually covering 6,000 flight hours per year. It was a long-term DBFMO-style contract: training aircraft fleet, simulators, infrastructure, and maintenance. The Defence and Security Procurement Act of 13 August 2011 applied because the contract involved military equipment. Nine candidates submitted requests to participate. On 25 October 2023, the Defence Minister selected six and excluded three, including Flying Group Holding. The grounds for excluding Flying Group were threefold. First: reliability (optional exclusion ground, art. 63 §2, 5° of the Royal Decree on Defence procurement). Subcontractor X had failed to provide Annex 3 on reliability, and subcontractor Y had 'close and undisputed ties with Chinese nationals and/or the Chinese government', insufficient for state security. Second: technical capacity – staffing (art. 74, 5°). The specifications required THE MRO (Maintenance, Repair and Overhaul) that would carry out the task to itself have at least 15 technicians with a Part-66 licence — Flying Group leaned on multiple MROs to reach that figure. Third: technical capacity – references (art. 74, 6°). Required: at least two service contracts in support of basic pilot training, in the bidder's own name. Flying Group relied on two subcontractors' contracts — not its own — and X's two contracts concerned simulators for tanker aircraft and transport aircraft, not basic pilot training. In its application, Flying Group challenged only the first ground: it argued that art. 20, first paragraph of the 2011 Defence Procurement Act was unconstitutional because the legislator did not itself define the optional exclusion grounds, and that the motivation about the Chinese ties was inadequate against the legal definition of 'dominant influence'. Only at the hearing did it raise criticism of the second and third grounds — too late, the Council ruled. The Council of State kept it short: even if Flying Group were right on the first ground, the second and third grounds independently support the non-selection. The criticism of the first ground is therefore a 'surplus motive' and cannot justify suspension. What's more: the same technical selection criteria (art. 74, 5° and 6° Defence RD) exist in the standard regime (art. 71, 3° of the 2016 Act + art. 68 of the 2017 RD). The application was dismissed.
Why does this matter?
Many non-selection decisions rest on multiple independent grounds. Attacking just one — usually the juiciest — leaves the others standing. And as long as one valid exclusion ground remains, the decision survives. This is the rule of the 'surplus motive': if the contracting authority bases its decision on multiple independent reasons and you challenge only one, you must immediately also dismantle the others. Otherwise your appeal is procedurally hopeless, however strong your criticism on a single point.
The lesson
When you receive a non-selection or exclusion notice with multiple grounds, read them one by one. For each: can you challenge it? If you cannot or will not challenge one ground, think twice before litigating — even if another ground is clearly wrong, it won't save you. Better: collect arguments against EVERY ground before filing the application, and structure your pleas so they together knock down all grounds. Late additions at the hearing are inadmissible.
Ask yourself
Holding an exclusion or non-selection decision? Count the grounds. Tick off: for each ground — do I have a serious argument to challenge it? Have I included that argument in my application? If even one unchallenged ground remains, my application loses. If at the hearing I want to raise a new ground: too late.
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 →