A selection criterion cannot be modified through a simple Q&A forum on e-Procurement
The Council of State suspends the award of an architectural services contract because the contracting authority modified a qualitative selection criterion via the e-Procurement forum, without a rectification notice, without extending the submission deadline, and without a decision by the competent body.
What happened?
Logivesdre launches a services contract for a comprehensive architectural mission for its new headquarters. The specifications require three references for office building renovations of at least €1,500,000 excluding VAT over the last five years. Four days before the submission deadline, the contracting authority modifies this criterion via the e-Procurement forum: it extends the accepted mission types to new construction, reduces the threshold to €1,000,000, and broadens the period to ten years. The RAHRE ARCHI consortium's tender is declared substantially irregular due to incomplete or missing DUMEs. The contract is awarded to BAJ ARCHITECTS, which could not have been selected under the original criteria. The RAHRE ARCHI consortium files for an emergency suspension.
Why does this matter?
This judgment clarifies that qualitative selection criteria constitute an essential element of a contract that cannot be modified through a simple Q&A exchange. Article 65 of the Royal Decree of 18 April 2017 requires any modification of a selection criterion to be published as a rectification notice, and in case of a late modification, the submission deadline must be extended pursuant to Article 9. The decision also illustrates that relaxing selection criteria is particularly sensitive as it could attract new economic operators. The judgment further recalls the enhanced duty to state reasons when qualitative selection presents difficulties, and applies the CJEU's Antea Polska case law to lift confidentiality over a tenderer's references.
The lesson
A contracting authority wishing to modify a qualitative selection criterion during the procedure must: (1) have the modification adopted by the competent body, (2) publish a rectification notice, and (3) extend the submission deadline if the modification occurs late. A simple Q&A forum on e-Procurement is never sufficient to modify a selection criterion, even if all interested economic operators have taken note of it.
Ask yourself
Do you verify that any modification of a qualitative selection criterion is published as a rectification notice with, where applicable, an extension of the submission deadline? Is the motivation for qualitative selection sufficiently detailed when a tenderer does not fully meet the criteria and you exercise your discretionary power?
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 →