A missing safety plan is not a selection issue, and an unattached analysis report cannot retroactively explain the decision
The Council of State suspends a demolition contract of €210,520 because the contracting authority declared a bidder 'not selected' due to a missing safety plan (PPSS) — which is not a selection criterion — and because the analysis report explaining why the offer was considered irregular was not included with the notification.
What happened?
La Régionale Visétoise d'Habitations — a social housing company — awarded a contract for the demolition of four residential blocks (six dwellings each), twelve garages and a mortuary in Visé. The specifications, based on a Société wallonne du Logement template, included a General Safety-Health Plan (PGSS) with three annexes (particular safety plan PPSS, cost calculation for safety measures, prevention charter) to be attached to each offer. Six contractors bid, including Loiseau. The analysis report of 11 December 2025 stated that four bidders, including Loiseau, failed the safety-health coordination requirements: Loiseau had not attached its PPSS. The report qualified these offers as 'null and irregular'. But the deliberation of 20 January 2026 didn't copy that reasoning: article 1 decided 'not to select' these bidders, and article 7 awarded the €210,520 contract to Legros Démolition. The notification of 3 March 2026 contained only the deliberation, not the analysis report. The Council found three fatal flaws. First: a PPSS has nothing to do with qualitative selection — selection criteria under article 71 of the 2016 Act concern professional suitability, economic/financial capacity or technical/professional capacity. A safety plan is a pre-execution formality, not a suitability test. Second: motivation by reference is allowed, but only if the referenced document is either reproduced in the act or known to the recipient at the moment of notification at the latest. Here the analysis report was only communicated during the procedure — so it couldn't explain the 'non-selection'. Third: even if the report could be used to interpret the intent, there is a contradiction between the dispositive ('not select') and the report ('substantial irregularity'), and this contradiction affects both the formal and the material motivation. The authority's argument that this was merely 'a linguistic error' with no prejudice was rejected: the Council does not rule on regularity in place of the contracting authority. Suspension granted.
Why does this matter?
Two things that frequently go wrong in Walloon and Brussels social housing companies: first, specifications based on templates that blur the line between selection and regularity ('non-selection' as a sanction for a missing annex); and second, notifications that only include the deliberation without the analysis report. As a contracting authority: if you motivate by reference to an annex, that annex must travel with the notification — not weeks later. As a bidder: if you get a 'non-selection' for a reason that has nothing to do with your capacity, that's a direct ground for suspension. The ruling also confirms that 'the irregularity is easy to fix' is not a defence: an irregularity remains an irregularity regardless of how quickly it can be corrected.
The lesson
As an authority: never stack — selection and regularity are two separate stages with separate motivations. A formality that only becomes relevant at execution (PPSS, prevention charter, execution planning) cannot be turned into a selection criterion. And if you motivate by reference: send the referenced document with the notification, or the reference does not count. As a bidder: always check whether you received all documents the decision refers to — if the report isn't attached, you already have a motivation ground.
Ask yourself
Have you as a bidder received a 'non-selection' for a missing document that actually belongs to execution (safety plan, prevention charter, execution schedule)? Ask whether that is truly a selection criterion under article 71. And check: was the report or document the decision refers to, attached to the notification? If not: motivation by reference cannot be invoked against you.
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 →