The Council of State departs from its own suspension judgment: the permit date as a reference requirement does survive full review in the DBFMO contract for Wavre and Paifve
The Forecare grouping — CIT Blaton, Entreprises Générales Dherte, the Centre Régional de Soins Psychiatriques Les Marronniers and AG Real Estate — was not selected for the DBFMO contract for two 250-place forensic psychiatry centres in Wavre and Paifve because one of its two engineering references, the CHC MontLégia hospital, carried a planning permit dated 8 July 2013 and thus fell outside the reference period; the Council of State had suspended that non-selection in April 2024, but now rejects the annulment action and expressly departs from its own suspension judgment, because the permit date is not a prohibited means of proof but a characteristic of the reference itself, and the criterion proves both relevant and proportionate.
What happened?
On 26 July 2023 the Régie des Bâtiments published in the Belgian tender bulletin — and on 31 July 2023 in the Official Journal of the European Union — a notice for a DBFMO contract for forensic psychiatry centres in Wavre and Paifve. Each centre is to hold 250 places; the selected operator designs, builds, finances, maintains and operates it for twenty-five years. The contract was split into two lots — lot 1 Wavre, lot 2 Paifve — and awarded through a competitive dialogue in three phases: selection, dialogue and award. The Régie acted in its own name and on behalf of the national health insurance institute, the federal public health service and the federal justice service. In its reply memorandum it sketched the background: between 1998 and 2021 Belgium was repeatedly condemned by the European Court of Human Rights over the detention of interned persons, with the pilot judgment W.D. v. Belgium as a turning point and the internment act of 5 May 2014 as the response; in a judgment of 6 September 2021 the Court again found a violation of articles 3 and 5(1) of the Convention, and in 2017 the CPT called the situation of the social-protection establishment at Paifve ‘alarming’. The notice set a deadline of 2 October 2023 at 10 a.m.; a corrective notice followed on 29 September 2023. The applicants filed their request to participate as the Forecare grouping on 9 October 2023, alongside four other groupings. The sticking point lay in one element of qualitative selection. The selection guide required references for six project aspects, including ‘quality design of buildings’, which in turn required at least two and at most three references for ‘engineering of a complex building (technical and sustainability)’. That design strand had its own time condition: only buildings whose permit had been approved in the five years before the reference date counted, a period the Régie extended to ten years to safeguard competition. A question and answer on the publication forum spelled it out: the permit had to have been granted between 3 October 2013 and 2 October 2023. The construction strand, by contrast, had a different time condition, tied to the start or provisional acceptance of the works, and other criteria used the signature date of the reference contract. For the engineering strand Forecare submitted two references: the CHC MontLégia hospital and Brussels Airport Company. The MontLégia permit dated from 8 July 2013 — almost three months too early. After a request for clarification of 14 November 2023, Forecare replied on 27 November 2023 with a modifying planning permit of 8 December 2017. That permit, however, concerned the extension of the gravel car park from roughly 300 to roughly 700 spaces and associated landscaping. The Régie held that a car-park extension is not a complex building within the meaning of the guide and that the engineering described — reinforcing the electrical supply, a new lighting study, management of spaces and barriers, new and modified roadways, additional trenches and updating of the electrical panels — was ordinary design work, not significant in the light of a complex building. That left one relevant reference instead of two. On 12 March 2024 the Régie decided not to select the Forecare consortium, for either lot. That is the contested act. By judgment no. 259.671 of 30 April 2024 the Council of State suspended its execution. The annulment action, brought on 28 March 2024, ends differently. First, the intervention. In May 2025 the Belgian State, represented by the Minister of Justice, sought to intervene: the contract is performed on its behalf, an annulment would restart the procedure entirely and delay both centres for years, with knock-on effects on prison overcrowding and on other pending procedures using similar selection criteria. The Council declares the intervention inadmissible. Article 52(1) of the general rules of procedure permits a late intervention only if it does not delay the proceedings. The State had been kept informed of the course of the case, including the suspension by judgment no. 259.671, and itself explains that it only saw the need to intervene ‘because of the orientation of the auditor’s report’ and in view of recent developments in prison capacity. The lateness was therefore a choice, and it did delay matters: the auditor, who had already filed his report, had to write a supplementary report under article 14, third paragraph, on the request to maintain the effects of the act. Then the single plea, in three branches. In the first two, Forecare argued that requiring a permit approved within the reference period amounts to a means of proof not allowed by article 68(4)(1)(a) and (b) of the royal decree of 18 April 2017. That provision — transposing article 60 and Annex XII of Directive 2014/24/EU — contains a closed list of means of proof, and under the Court of Justice’s Ambisig judgment of 7 July 2016 contracting authorities may not require new means of proof, limit the scope of existing ones, or attach additional requirements that substantially alter their nature or conditions, precisely in order to prevent excessive evidentiary demands and impeded access to public contracts. Forecare argued that engineering services are largely delivered after the permit, so that tying the reference to the permit date excludes work performed within the reference period. The Council disagrees. The permit date is merely a characteristic of the reference invoked, used to determine whether it falls within the maximum ten-year period — no different in nature from the contract signature date used for other criteria in the same contract. The proof required remains a list of works executed or services provided; the references on that list must simply match the chosen selection criterion in each of their characteristics. Nor did Forecare have any difficulty proving that a reference existed — its reference simply did not meet the requirements. In one sentence that marks the whole case, the Council concludes that it is justified in departing from the solution adopted at the suspension stage in judgment no. 259.671. The third branch concerned the relevance and proportionality of the criterion under article 71 of the law of 17 June 2016. The contracting authority enjoys broad discretion there, bounded by the requirement that criterion and threshold be relevant and proportionate to the subject matter. On relevance: the guide sought to measure the capacity to carry a complete design assignment for a complex building, with technical considerations reflecting the intended use from the earliest design stages — the vision of internment, rehabilitation and reintegration, staffing, security, the flows of different target groups, access control and the internees’ quality of life. That explains the link to the permit: it ensures the experience invoked is a complete and sufficiently recent design assignment. The argument that most engineering work happens after the permit does not refute this, and even turns against Forecare: the document on consulting engineers’ terms of engagement which it filed itself puts the preliminary-design and design studies — ending with the documents for the permit application — at sixty per cent of total fees. Moreover, post-permit work does count, since the thresholds of 35 million and 18 million euros relate to the total value of the buildings designed. The argument that a permitted project need never be built runs into the requirement of a certificate of satisfactory execution from the client: the building must have been constructed. On proportionality the Council weighs five factors. This is a financially and politically substantial contract with European publication, which justifies high selection requirements. The guide was clear about the intended rigour on design quality from the initial phase. Of the five candidates, only Forecare failed on this criterion; that four others satisfied it does not suggest an excessive restriction of competition. An email of 21 November 2023 shows that Forecare itself offered to supply another reference besides MontLégia, suggesting it believed it could. And above all, the Régie had stretched the reference period from five to ten years, considerably beyond the regulatory minimum, which substantially tempers any restrictive effect. A restriction of competition is moreover inherent in any selection criterion; the exclusion of one operator is not enough to make it disproportionate. The plea fails in all its branches. The Régie’s request to indicate remedial measures under article 35/1 falls away on a rejection. Costs: the intervening State bears the 150-euro fee attached to its intervention; the four applicants each bear one quarter of the roll fees of 1,600 euros, the contributions of 48 euros and the procedural indemnity of 924 euros awarded to the Régie.
Why does this matter?
The most striking thing about this judgment sits in a single sentence halfway through: it is justified in departing from the solution the Council itself had adopted in the suspension judgment. Winning a suspension wins you a prima facie assessment, not a case. Suspension proceedings turn on a rapid appraisal of whether a plea is serious; the main proceedings involve full examination, exchanged memoranda and an auditor’s report, and can reach the opposite conclusion. In practice this means a suspended contracting authority has not necessarily lost, and a successful applicant would do well not to build commercial decisions on a suspension alone. Here it cost the four applicants, more than two years later, 1,600 euros in roll fees, 48 euros in contributions and a 924-euro procedural indemnity between them — and above all their seat at the dialogue table of a contract of this size. Substantively, the judgment draws a line that remains persistently blurred around reference requirements. The closed list of article 68(4) and the Ambisig case law protect against excessive evidentiary demands: the authority may not require you to prove your experience otherwise than by a list of works executed or services provided with certificates of satisfactory execution. What that protection does not do is determine which references count on the merits. The distinction the Council draws is between the manner of proving and the characteristics of the fact proved. A permit date says nothing about how you must demonstrate something; it says what you must demonstrate. As long as the authority stays within the permitted means of proof, it may define sharply which references fit — and that definition is then tested under article 71: relevance and proportionality, not the rules of evidence. That second test is especially instructive here, because the judgment shows what an authority must do to pass it. The Régie had set a distinct time condition for each project aspect — permit for design, start or provisional acceptance for construction, contract date for other aspects — and explained that choice in the guide by reference to what it wanted to measure. It had also voluntarily extended the period from five to ten years. Precisely those two things carry the judgment: the criterion is relevant because it matches a complete design assignment, and it is proportionate partly because the reference period was generously stretched and four of the five candidates met it. An authority that does not explain its reference requirements and applies the minimum periods stands noticeably weaker. For candidates the bitterest lesson lies in the detail. Forecare lost its place over a gap of barely three months on a 2013 permit, and the rescue attempt — a 2017 modifying permit for a car-park extension — made things worse, because it confirmed that the additional design work did not concern a complex building. A bidder who invokes a reference and itself confirms its date cannot then repair that date. And the argument that the real engineering comes later collided with a document the applicants had filed themselves. In a selection dispute, what counts is not only what you argue but also what your own exhibits prove. Finally, a procedural lesson rarely put so sharply. The Belgian State — beneficiary of the contract, with an unmistakable interest in the outcome — intervened too late, and the Council calls that lateness a choice: it had been kept informed and only reacted when the auditor’s report seemed to be heading the wrong way. That cost it access to the debate and 150 euros. Anyone with a genuine interest in a procurement dispute intervenes as soon as they learn of the action, not when the wind turns.
The lesson
If you are a candidate or bidder, read the reference requirements aspect by aspect and pay particular attention to the time condition, which can differ per aspect: a permit date for design, a start or acceptance date for construction, a contract date for other criteria. Test your portfolio against each of those dates separately before the deadline, and leave margin: here the gap was barely three months. If you think the requirement is unlawful, challenge it before the deadline expires rather than hoping it falls afterwards — the closed list of means of proof in article 68(4) protects you against excessive forms of proof, not against strict substantive reference requirements. To attack relevance or proportionality you must offer more than the fact that you fall out: a selection criterion restricts competition by definition. Show that the requirement goes beyond what is necessary and excludes operators who could perform the contract — the fact that four of five candidates did meet it is then a hard counter-argument. Finally, check your own exhibits: the document on consulting engineers’ fees that Forecare filed undercut its own case. And if you win the suspension, do not celebrate too early: the main proceedings may decide the opposite. If you are a contracting authority, this judgment shows how to make strict reference requirements hold. Explain in the selection guide what each criterion is meant to measure and why the chosen time condition fits — the link to the permit survived because the guide expressly targeted a complete design assignment, including the technical choices made in the earliest phases. Stay within the means of proof of article 68(4): require a list of works executed or services provided with certificates of satisfactory execution, and use additional conditions to define the references substantively, not to demand a different kind of proof. Extend the reference period where that benefits competition; that voluntary extension from five to ten years weighed heavily in your favour here. Use a question-and-answer forum to make the requirement unambiguous, and ask a candidate for clarification before you decide. And if you have an interest in a pending action, intervene in time: waiting until after the auditor’s report makes your intervention inadmissible.
Ask yourself
Have you checked, for each project aspect, which date fixes the reference period — permit, start of works, provisional acceptance or contract date — instead of assuming a single general term? Does your strongest reference sit comfortably inside that period, or does your file hang on a few weeks? Do you realise that the closed list of means of proof shields you from excessive forms of proof, but not from strict substantive requirements on the reference itself? If you challenge relevance or proportionality, can you show more than the fact that you are excluded? Have you checked that your own exhibits do not undercut your case? Are you building business decisions on a suspension judgment, when the main proceedings may decide the opposite? And as an authority: does your selection guide explain why each time condition matches what you want to measure, and have you extended the reference period where that benefits competition? As an intervening party: do you intervene as soon as you learn of the action, or only when the auditor’s report points the wrong way?
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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 →