Two independent grounds for rejection: challenging only one means no standing — even if your other argument is strong
The Council of State rejects the extreme urgency suspension against the non-selection of SM Constructel for the RESA/ORES smart meter contract because the applicants did not challenge one of the two independent grounds for rejection — the absence of a VCA certificate for Modal — so the contested decision can stand on that uncontested ground alone.
What happened?
On 2 May 2024, RESA Innovation et Technologie, acting in its own name and on behalf of the RESA intercommunal company and ORES, launches a joint works contract for the mass rollout of communicating electricity meters in Wallonia — between 1.1 and 1.3 million smart meters (400,000 for RESA, 700,000 to 900,000 for ORES) plus customer journey management and automated data exchange. The contract is divided in three lots and uses a negotiated procedure with prior call for competition — special sectors. The contract notice requires a VCA certificate (or ISO 45001:2018 or equivalent) from bidders and their subcontractors, because the contracting authority attaches 'capital importance' to network security. Six candidates apply, among them the temporary association SM Constructel formed by Modal Installation NV and Constructel Belgium NV, for all three lots. On 10 July 2024, the RESA directors' college decides not to select SM Constructel. The motivation mentions two reasons: (1) no VCA certificate was submitted for Modal, and (2) Constructel's VCA concerns an object unrelated to the subject of the contract and the nature of the works. On 26 July 2024, the applicants file an extreme urgency suspension. Their sole plea exclusively targets the second ground — the dispute over the object of Constructel's VCA — and leaves the first ground about Modal unchallenged. At the hearing, the applicants even admit that Modal does not hold the required certification. The Council of State applies classic case law: to be admissible, the plea must point to a violation that has harmed or risks harming the applicant (art. 14 and 15 of the Act of 17 June 2013). When the contested decision contains two independent grounds, each sufficient on its own, and the applicant challenges only one, the decision can stand on the uncontested ground. There is then no lésion nor risque de lésion — and therefore no standing. The Council adds a second point of principle about the VCA requirement itself: although the specifications do not explicitly state that each member of a temporary association must individually hold VCA certification, this follows from the logic of the requirement. The contract notice does explicitly state, for the selection criterion 'experience with minimum 25,000 meters', that it suffices if one of the members has that experience — for VCA no such exception exists, which a contrario means all members and subcontractors must be certified. The argument about the 'imminent merger' between Modal and Constructel fails: at the moment of the decision the merger was still at project stage and even at the hearing not yet concluded; a contracting authority attentive to safety may base itself on the legal situation at the time of deciding. Extreme urgency suspension rejected, costs reserved.
Why does this matter?
This ruling is a classic on the admissibility of public procurement appeals — specifically the requirement of 'standing'. In practice, the motivation of a rejection decision often rests on two or more grounds: each ground individually can justify the decision. For a lawyer or bid manager preparing an extreme urgency application in a tight timeframe, it is essential to systematically identify ALL grounds and attack each one. One forgotten or deliberately ignored ground means the entire appeal can be declared inadmissible — regardless of how strong your arguments against the other grounds are. The ruling also confirms that the VCA requirement in construction is strictly interpreted: if the contract notice explicitly differentiates between criteria that 'one member suffices' and others without such an exception, the second category applies to every member and every subcontractor.
The lesson
When you challenge an award decision or a non-selection decision with multiple independent grounds in the motivation: attack ALL grounds systematically, even if you think one is much weaker than the others. An omitted ground is a fatal door left open for the contracting authority — the court will uphold the decision on that uncontested ground, even if your plea against the challenged ground is brilliant. Read your contract notice twice when bidding as a temporary association: every requirement that does NOT explicitly say 'one member suffices' applies cumulatively to all members and subcontractors.
Ask yourself
When preparing an extreme urgency application, before filing ask yourself: 'Do all the grounds I can count in the contested decision also appear in my pleas?' Write them out one by one, with separate criticism per ground. If one ground is missing or weakly treated: expand before filing. When examining a contract as a temporary association that requires VCA or ISO 45001: check whether the contract notice allows an exception 'for one of the members' anywhere — if not, every member and subcontractor needs that certificate before submission.
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 →