Set the bar high yourself and then let the winner pass? That's not allowed
The Council of State suspends an award because the contracting authority applied a strict reading of the selection criterion to the loser, but not to the winner.
What happened?
The Autonomous Municipal Enterprise Mobility and Parking Antwerp tendered a contract for a control bureau for the construction of an underground car park at the Loodswezen. The specifications required references where a ten-year liability insurance had been taken out. No tenderer had included those certificates with their bid, so the contracting authority gave everyone a second chance. The loser submitted declarations of intent from insurers and satisfaction certificates from clients, but according to the contracting authority this was insufficient: proof that the insurance had actually been taken out was required. However, the winner also failed to provide proof of insurance for one of their two references — the works hadn't even been completed yet. The winner was still selected. The Council of State ruled that the contracting authority had not consistently applied its own strict reading of the specifications and suspended the award.
Why does this matter?
This ruling illustrates a powerful argument for losing tenderers: if the contracting authority sets strict requirements but doesn't apply them equally to all tenderers, it violates the principle of equal treatment. This pattern occurs more often than you think, but you need to know the winner's administrative file to prove it.
The lesson
After rejection, always request access to the administrative file, including the winner's supporting documents. If the contracting authority uses a strict reading of the specifications to reject you, check whether that same strict reading was also applied to the winner.
Check yourself
If my references are rejected: has the winner provided exactly the same type of proof that is expected of me, or is there a double standard?