Demanding a 'team member for acoustics' without any selection criterion for acoustics: Getevallei police zone must redo the selection
The Council of State suspends the non-selection of LAVA Architects for the conversion of the police building in Tienen because the police zone excluded it for 'missing team member for acoustics and safety coordination' — while the selection guide imposed no selection criterion for those disciplines and LAVA bid as a single legal entity, not as a consortium.
What happened?
Police zone Getevallei issued a two-phase contract for a study assignment ('Study Assignment S1360') for the conversion of a Federal Administrative Centre into a police building in Tienen. In phase 1, up to three candidates could pass to the offer phase. The selection guide stated under article 2.1.1 ('Consortium without legal personality') that if the bidder is a consortium without legal personality, each member must meet the selection criteria for its part, with a task description on pain of nullity. Article 2.2.3 imposed specific selection criteria for three disciplines: architecture, stability and techniques — each requiring one equivalent reference project (police building with net construction cost of at least EUR 6,500,000). For 'acoustics' and 'safety coordination' NO selection criteria were formulated. Article 2.2.5 stated that if the bidder offers an in-house safety coordinator OR has a permanent collaboration, it must include the data. Seven applications were submitted. LAVA Architects bid as a single legal entity — not a consortium — and used one subcontractor (to demonstrate technical capacity for 'techniques'). In the selection report of 19 February 2024, LAVA was found not to have designated a team member for 'acoustics' and 'safety coordination', nor included task division or UEA/commitment statement. On 28 February the non-selection was approved: three of seven candidates were 'inadmissible', LAVA included. LAVA filed an extreme-urgency suspension with one ground in four parts. The Council systematically examined which clause could support the non-selection. First article 2.1.1: applies only to consortia without legal personality. LAVA was no consortium, so this clause cannot bind it. The Council noted that 'samenwerkingsverband' in 2.1.1 aligns with the definition of 'economic operator' in article 2, 10° of the 2016 Act and with directive 2014/24/EU (recital 14, article 19(2)). Second: article 73 of the Act and KB about UEA and commitment for entities on whose capacity the bidder relies. LAVA only relied on its subcontractor's capacity for the 'techniques' part; for acoustics and safety coordination there was no reliance, so no UEA/commitment obligation. Third: article 2.2.4 of the selection guide ('Subcontractors'). The authority may, in the selection phase, ask which part will be subcontracted (article 68, § 4, 10° KB). BUT: this proof is meant to assess the candidate's technical capacity. For acoustics and safety coordination, prima facie no qualitative selection requirements were formulated. To exclude LAVA on this clause, the authority should have justified what consequence the missing entry has on technical capacity — which it did not. Fourth: article 2.2.5 on safety coordination. That clause requires data only 'in that case' — if the bidder offers an in-house coordinator or has a permanent collaboration. LAVA declared it had neither. The authority did not contest. So no obligation. The first three parts were serious. The Council suspended the selection decision regarding LAVA. The fourth part was not examined (subsidiary).
Why does this matter?
Authorities like to write selection guides with detailed team compositions — architecture, stability, techniques, acoustics, EPB, safety coordination, fire safety, sometimes up to ten disciplines. But they don't always formulate an explicit selection criterion for each. This ruling exposes the problem: a discipline without a selection criterion cannot lead to exclusion for 'missing'. For bidders this is an important defence line. Are you excluded in phase 1 for missing a team member for discipline X? First check whether the selection guide imposes selection criteria for discipline X (reference project, turnover, experience). No criteria = no valid exclusion ground. The ruling also stresses a nuance: article 2.1.1 on consortia does not apply to single legal entities — an authority cannot quietly extend consortium rules to solo bidders. For authorities: writing a selection guide with disciplines and team members? Make sure every discipline you require has concrete selection criteria, or use a functional mechanism via 'reliance on capacity' (where UEA/commitment is mandatory, but only when the bidder actually relies on that capacity).
The lesson
If you submit a candidacy and are excluded for 'missing team member' for a specific discipline, check the selection guide for an actual selection criterion (reference, turnover, recognition...). No selection criterion = no lawful exclusion ground. Also check if you were obliged to mention that discipline at all: clauses for 'consortia without legal personality' apply only to consortia, not to solo legal entities. The UEA / commitment obligation applies only to entities on whose capacity you actually rely — not to subcontractors you might engage later.
Ask yourself
Non-selection decision in hand? For each 'missing' discipline that excluded you: find the corresponding selection criterion in the guide (reference, turnover, experience, recognition). If you find nothing — only mention of the discipline or the word 'team member' — you have a suspension ground. Also check whether you bid as a single legal entity or as a consortium: clauses for consortia ('samenwerkingsverband') do not automatically apply to solo bidders.
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 →