Suspension application under extreme urgency for soil analysis services in Bastogne rejected – requiring certificates of satisfactory execution alongside references for technical capacity is not manifestly unreasonable, including for service contracts; RECOSOL not selected for failing to provide certificates despite recognition as préleveur by SPW
The Council of State rejected the suspension application under extreme urgency by SRL RECOSOL against the decision of the Ville de Bastogne not to select it for a service contract for soil sampling and analysis, because the first ground was not serious: the specifications required as a selection criterion for technical capacity at least three references for similar services supported by certificates of satisfactory execution, and the fact that Article 68 §4(1)(b) of the Royal Decree of 18 April 2017 does not expressly prescribe certificates of satisfactory execution for services does not prevent the contracting authority from requiring such certificates to verify the reality of the invoked references — and the second ground (unclear abbreviations in the reference table) was inadmissible for lack of standing, as the non-selection was based solely on the missing certificates.
What happened?
The Ville de Bastogne tendered through an open procedure a service contract for soil sampling and analysis for the establishment of soil quality reports under the Walloon Soil Decree of 1 March 2018. The estimated value was €70,100 excluding VAT per year, for twelve months renewable twice (maximum three years). The sole award criterion was price. The specifications set three technical capacity selection criteria: (1) recognition as préleveur, expert or laboratory under the Soil Decree, (2) at least three references for similar services (minimum €2,000 excluding VAT each) supported by certificates of satisfactory execution (Formulaire 4 BIS from FPS Economy) with amounts, dates and contracting parties, and (3) Belac accreditation for compressibility tests (ISO 17025). Five tenders were submitted. Four of five tenderers were not selected for failing to meet the technical capacity criterion. INISMa was the only selected tenderer and was awarded the contract on 18 July 2025. RECOSOL was recognised by SPW as préleveur, driller and expert under the Soil Decree but submitted three references without certificates of satisfactory execution, citing privacy reasons. In the first ground, RECOSOL argued that requiring certificates of satisfactory execution violated Article 68 §4 of the 2017 Royal Decree, which for services (unlike works) does not expressly prescribe such certificates. The Council held that while Article 68 §4(1)(b) does not expressly prescribe certificates of satisfactory execution for services, this does not prevent the contracting authority from requiring them to verify the reality of invoked references. It was not manifestly unreasonable. RECOSOL also failed to demonstrate that it could not have obtained the certificates. The first ground was not serious. In the second ground, RECOSOL challenged the reasoning about unclear abbreviations (ECO, PA) in the reference table. The Council found that the contested decision was based solely on the missing certificates, not on unclear abbreviations. The abbreviation issue appeared only in the notification letter but did not determine the contested decision. RECOSOL had no standing. The application was rejected with costs (€200 court fee, €26 contribution, €770 procedural indemnity) charged to RECOSOL.
Why does this matter?
This ruling clarifies that contracting authorities may require certificates of satisfactory execution alongside references for technical capacity in service contracts, even though Article 68 §4(1)(b) of the 2017 Royal Decree does not expressly prescribe them for services. The authority must be able to verify the reality of invoked references using appropriate means. An abstract reliance on privacy reasons to avoid providing certificates is insufficient without demonstrating that the certificates were genuinely unobtainable. A reasoning that appears only in the notification letter but not in the contested decision itself cannot have harmed the applicant.
The lesson
Contracting authorities may require certificates of satisfactory execution alongside references for technical capacity in service contracts. As a tenderer, provide all requested certificates — citing privacy without demonstrating that certificates are unobtainable is insufficient. Direct any legal challenge against the actual reasoning of the contested decision, not against reasons appearing only in the notification letter.
Ask yourself
As a contracting authority: have you clearly specified which evidence you expect for technical capacity, including certificates of satisfactory execution? Are your requirements reasonable and proportionate? As a tenderer: have you provided all required certificates? Can you demonstrate that certain certificates are genuinely unobtainable? Does your legal challenge target the actual reasoning of the contested decision?
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 →