Selection criterion in specifications sharpening the contract notice: non-selection based on unannounced minimum requirement suspended
The Council of State suspends the non-selection of a signage and exhibition material supplier by VDAB, because the requirement that references relate to exhibitions with at least 70 stands was only included in the specifications and not in the mandatory contract notice — specifications may repeat but not tighten selection criteria beyond the contract notice.
What happened?
VDAB launched an open procedure for a framework agreement for signage and exhibition materials. In the contract notice (published both nationally and in the EU Official Journal), the technical capability criterion required a list of at least three similar services (nature and scope) from the past three years, with name, region, contact details, description, total amount and duration. The specifications repeated this criterion but further defined 'similar services' as requiring exhibitions with a minimum of 70 stands. This minimum requirement was printed in bold in the specifications but did not appear in the contract notice. The applicant submitted three references of framework agreements with large clients. The evaluation report found these references insufficient because they did not demonstrate projects at exhibitions with at least 70 stands. An earlier (subsequently withdrawn) award decision of 28 March 2025 had selected the applicant. The Council found the second ground serious. Article 65 of the Royal Decree requires selection criteria and acceptable evidence to be stated in the contract notice when publication is mandatory. The specifications may repeat these criteria but may not deviate from the notice. The non-selection based on a requirement not stated in the contract notice rests on a legally unacceptable ground. The authority's argument that there was an additional independent reason was rejected because the reasoning was not formulated clearly enough to establish separate independent grounds. The suspension was ordered.
Why does this matter?
This ruling confirms a fundamental principle: when a contract notice is mandatory, selection criteria and their minimum requirements must be stated therein. Specifications may repeat and clarify but not tighten or supplement with additional requirements absent from the notice. Potential tenderers base their participation decision on the notice, not the specifications. A minimum requirement only in the specifications may have deterred candidates who would otherwise have tendered, distorting competition.
The lesson
As a contracting authority: verify before publication that all selection criteria and minimum requirements are identically formulated in both the contract notice and specifications. A bold-printed minimum requirement in the specifications that does not appear in the notice is legally unenforceable as a selection criterion. As a tenderer: always compare the notice with the specifications at selection criteria level. When specifications contain requirements absent from the notice, this may constitute grounds for appeal. Additionally, always document references with concrete assignments — not just framework agreements — and provide all requested details.
Ask yourself
As a contracting authority: does every minimum requirement for selection criteria — including the definition of 'similar services' — appear in both the contract notice and the specifications? As a tenderer: do the specifications tighten selection criteria beyond the contract notice? Have you supported your references with concrete assignments rather than just framework agreement names?
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 →