Interlocutory ruling fire tower Kalmthout: first plea on selection criteria references rejected, debate reopened for price investigation
Interlocutory ruling: in Swinnen's annulment appeal against the award for building a fire tower on the Kalmthout Heath, the first plea — regarding the selected tenderer's reference selection criteria — is rejected in all its branches; the appeal against the implicit refusal decision is inadmissible; the debate is reopened for the second plea (price investigation) and damages.
What happened?
The municipality of Kalmthout tendered construction of a new fire tower on the Kalmthout Heath, estimated at EUR 670,626.68 excluding VAT, via a simplified negotiated procedure with prior publication. Price was the sole award criterion. Selection required references for at least two projects involving a steel structure with architectural value, comparable complexity or the same finishing grade. Four tenderers submitted offers. After arithmetic verification: tm IDD-C. (EUR 601,081.59), Swinnen (EUR 828,754.95), O. (EUR 898,898.98) and P. (EUR 1,043,148.70). The authority requested price justification from IDD-C. for two unit prices for steel profiles. IDD-C. provided a detailed breakdown and steel supplier quote. The stability engineer confirmed market conformity. On 19 July 2021, the college awarded to IDD-C. After Swinnen's objections regarding formal motivation and price investigation, the college withdrew the decision on 16 August 2021 and issued a new, more extensively motivated award decision — again to IDD-C. The 'administrative verification' annex was accidentally not sent with the notification. Swinnen filed an annulment appeal on 14 October 2021 and also claimed damages. The first plea comprised three branches plus a new branch in the final memorial, all challenging IDD-C.'s selection. (1) On references: IDD-C. submitted three references for partner IDD — station canopy Mechelen (stairs/ladders/bridges), evacuation staircase for C.B., and drum sieve IVVO Ypres. The Council found the selection criterion broadly formulated with three alternative conditions, not limited to fire towers. The authority did not exceed the limits of careful assessment. (2) On absence of selection investigation: the 'administrative verification' annex with 'yes' notation and correspondence with IDD-C. showed substantive investigation occurred. (3) On motivation: when investigation reveals no special problems, extensive description in the report is not required. The failure to include the annex in notification is not an illegality warranting annulment. (4) New branch on subcontractor replacement: IDD's own references sufficed, so Swinnen lacks interest. The appeal against the implicit refusal decision is inadmissible. The debate is reopened for the second plea (abnormal price investigation) and damages.
Why does this matter?
This interlocutory ruling provides detailed guidance on assessing reference selection criteria. It confirms that contracting authorities have wide discretion in evaluating references, and that a criterion referencing 'comparable complexity or same finishing grade' may be broadly interpreted — references need not be identical to the contract's subject. The formal motivation duty for selection is limited: when investigation reveals no special problems, extensive documentation in the report is not required.
The lesson
As contracting authority: formulate reference selection criteria broadly enough to ensure competition, but assess submitted references carefully and document the investigation. Extensive formal motivation is not required if no problems arise, but ensure the administrative file traces the investigation. As tenderer challenging a competitor's selection: the authority has wide discretion — it is insufficient to argue that references are not identical to the contract's subject when the criterion is more broadly formulated.
Ask yourself
As contracting authority, did I formulate the reference selection criteria broadly enough for desired competition? Did I document the reference investigation in the administrative file? Did I include all annexes with the notification? As applicant: am I demonstrating that the authority exceeded the limits of careful assessment, or merely expressing a different appreciation?
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 →