Rejection of suspension application: capacity criterion for VDAB outplacement framework correctly applied — references on annual basis not cumulative across years — no interest in ground on award evaluation when preferred lot already awarded
The Council of State rejected the suspension application by BV D. against VDAB's award of an outplacement framework agreement (Social Intervention Fund SIF5) across ten Flemish lots, because VDAB correctly assessed the capacity criterion on an annual basis rather than cumulatively, limiting BV D. to one lot, and the second ground on award evaluation was inadmissible as BV D. had already been awarded its preferred lot.
What happened?
VDAB tendered a framework agreement for outplacement services across ten lots (nine regional, one Flemish). Price was fixed; only technical quality counted. BV D. claimed capacity of 752 trajectories but this was the sum across 2022-2025, not an annual figure. The highest annual figure was 347 (2024), sufficient for only one lot. VDAB awarded BV D. its preferred lot (SIF5_GER). BV D.'s challenge of the capacity assessment failed: references must be demonstrated on an annual basis. Post-hoc reworking of reference data was rejected. Forum clarifications were not tender modifications. The second ground on evaluation methodology was inadmissible: BV D. already had its best possible outcome. The application was fully rejected.
Why does this matter?
This ruling clarifies that capacity references on an annual basis cannot be cumulated across multiple years. The contracting authority may choose one objective reference point (e.g., trajectory start date) and apply it consistently. Forum clarifications do not constitute tender modifications. A tenderer who already received its best possible outcome has no standing to challenge the award evaluation.
The lesson
Present capacity references per year as required by the tender, not cumulated across years. Use your strongest individual year. Post-hoc reworking of reference data is not acceptable. Ensure your best annual figure meets the cumulative threshold for all lots you bid on.
Ask yourself
Have you presented references on an annual basis? Does your best individual year meet the threshold for the number of lots you are bidding on?
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 →