Indexing your own references to clear the threshold: the Council of State doesn't fall for it
The Council of State rejects Dherte's emergency claim against the award of a €23 million school construction contract to Artes because Dherte did two things it shouldn't: applying its own price-revision formula to inflate old references above the tender thresholds, and challenging only the €20 million threshold while its non-selection also independently rested on an unchallenged €10 million reference requirement for a school building.
What happened?
On 25 September 2023 the Province of Hainaut, together with the city of Mons and the CHUPMB intercommunal, launched an open procedure for the construction of the secondary school (lower and upper) of the 'pôle scolaire des Grands Prés — École du Futur'. Estimate for lot 1: about €24.9 million excluding VAT. Funded by nextGenerationEU (Recovery and Resilience Plan) and the French Community. Sole award criterion: price. As a selection criterion in section 18.2.2 of the tender specifications: three references from within the last 5 years (provisional acceptance): two references for a 'general contractor coordinator mission' for a new-build of minimum €20,000,000 HTVA per reference, and one reference for a new-build education building of more than €10,000,000 HTVA. Dherte submitted four references: 'Au fil des Grands Prés' (OK), 'Cyan' (initially), 'La Sucrerie' (Ath, replacing Cyan after a query) and 'Ilot des Sciences' (UNamur, education building). On 18 January 2024 the Province awarded the contract to Dherte for €21.16 million HTVA. Artes filed an emergency challenge criticising Dherte's selection. Result: the Province withdrew its decision on 8 February, reanalysed the offers, and on 28 March 2024 awarded the contract to Artes for €21.92 million HTVA with non-selection of Dherte. The reasoning: 'Cyan' does not reach the €20 million threshold (Dherte held only 50%, no attached undertaking from the co-contractor). 'La Sucrerie': the good-execution certificate shows €18.09 million — but Dherte added by hand €23.12 million with the note 'revised amount (Oct 2023)'. On query, Dherte confirmed it had itself applied a price-revision formula with the October 2023 index. Same for 'Ilot des Sciences' (€8.05 million actually received, revised by hand to €10.44 million). The Province refused to accept this unilateral revision: the criterion concerns works completed in the last 5 years and requires a fixed, uniform amount — otherwise each bidder could apply its own revision clause. Result: one usable reference (Au fil des Grands Prés) out of three required. Non-selection. Dherte challenged the €20 million threshold as disproportionate given construction cost inflation. But two problems pile up: (1) Dherte does NOT challenge the €10 million threshold for an education building, whereas non-selection independently rests on that. The absence of a valid education reference alone suffices. (2) Dherte does not contest that its only education reference (Ilot des Sciences) at €8.05 million sits below the €10 million threshold — only its own price revision would push it above. The claim therefore lacks interest in its sole ground: the alleged illegality regarding the €20 million threshold did not and does not threaten to harm Dherte. Inadmissible. Rejected, with a procedural indemnity of €770 plus €300 roll fee for the interveners.
Why does this matter?
Two structural lessons from a single judgment. First, on references: what counts is the amount you actually received for completed works, not a price-revision you apply yourself. Logical: if every bidder can apply their own revision formula (different indices, different base dates), comparison between offers becomes impossible. If the contracting authority had wanted to apply a revision formula itself, it should have included it in the specifications. If it doesn't, the reference amount is the acceptance amount. This is particularly relevant after 2021-2024, when construction costs rose significantly: bidders see their old references 'in 2020 euros' while current tenders are in '2024 euros'. That painful gap is a real sore point, but the solution is not for each bidder to reindex unilaterally — it's for the authority to choose its thresholds wisely (and possibly include a revision clause), or for the bidder to build a proportionality argument against the threshold itself, with evidence. Second lesson: if you are not selected on multiple independent grounds, you must challenge ALL grounds. If your ground targets only one, your claim fails for lack of interest — because even if upheld, the other ground remains, and non-selection stands.
The lesson
As a bidder: (1) take reference amounts from the good-execution certificate unchanged — even if, given inflation, the works feel dated. Want to revise the amount upward? Only if the specifications explicitly provide a revision formula. A handwritten 'revised amount' can be fatal. (2) If you are excluded or non-selected on multiple grounds: structure your ground so that it hits EVERY ground. Leaving one supporting leg standing = lack of interest. As contracting authority: be explicit in your tender specifications about which reference amounts you expect — nominal, indexed, and which index formula — to avoid such disputes.
Ask yourself
You are not selected on multiple independent grounds (e.g. two non-compliant references, or one non-compliant reference plus another irregularity). Ask yourself: does your ground of appeal hit EVERY ground? Or are you leaving one untouched? If the answer is 'one untouched': your claim is inadmissible for lack of interest.
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 →