Badminton in the appliance bay is not enough: a fire station is not a public sports hall, and Farys was entitled to reject the designer who was one reference short
The Farys tender documents for the design of a new sports hall in Pittem required two references for a ‘design similar in scale and type for the construction or renovation of a public sports hall’; when a tenderer defended its fire station in Lokeren as a second reference because the firefighters play badminton and basketball there, the Council of State held that ‘similar’ attaches to the sports hall and not to buildings in general, and dismissed the application for suspension under extreme urgency with a procedural indemnity of 770 euros against the tenderer.
What happened?
The inter-municipal utility Farys launched a public services contract for the appointment of a designer for a new sports hall next to the existing one on the De Molen sports site, Egemstraat 47 in Pittem. Tender documents S-182-25-000 provided for an open procedure under article 36 of the Public Procurement Act, in a single lot, published at European and national level. The municipality of Pittem set an investment budget of 5,000,000 euros excluding VAT — expressly ‘the financial limit within which the design must be developed’, with substantial overruns not permitted. The designer would be remunerated through a fee percentage within a band of 6 to 10 per cent, and after the preliminary design the authority built in a decision point: sub-tasks 2 to 5 would be called off in full, in part or not at all depending on approval of the project. For qualitative selection, point 14.2 of the tender documents required two things: a certificate of registration with the Order of Architects, and ‘at least two relevant references (including a satisfaction certificate) showing that the designer-architect in the tendering design team was responsible, within the last five years, for a design similar in scale and type for the construction or renovation of a public sports hall, each for a minimum execution amount of € 3 500 000 (excl. VAT)’. Farys expressly justified that departing five-year period under article 68, § 4, 1°, b of the Royal Decree of 18 April 2017: the references sought are relatively specific, and the COVID pandemic had marked the construction sector for years. Minutes of provisional or final acceptance were not accepted as satisfaction certificates, and to qualify for selection a tenderer had to meet all the criteria. The applicant — anonymised in the judgment as ‘BV A.’ — submitted a tender in time. On 20 April 2026 Farys asked by email for clarification of its references: for ‘Municipal primary school De Rekke: new primary school with sports hall’, the share of the sports hall in the total execution amount, and for ‘Odisee Aalst: renovation of façade, sanitary facilities and roofs on various campuses’, which works related specifically to the sports halls, plus a signed satisfaction certificate. On two other references Farys was blunt: ‘New fire station Lokeren’ and ‘MRCC Ostend’ did not qualify, because they contained no sports hall. On 29 April 2026 the tenderer defended the fire station. The building has spans of over 34 metres, ‘which corresponds to a sports hall’; it contains a reception area, offices, meeting rooms, a first-aid room, technical rooms, changing rooms with showers and sanitary facilities, a cafeteria with kitchen and a multipurpose hall with a fitness area. And, the manager added: ‘In the appliance bay the fire service plays sport with removable nets, badminton, and basketball with a fixed hoop. We do that in all our fire stations.’ Farys was not persuaded. On 3 June 2026 its general management decided not to select the tenderer: only one of its references met the requirements. The evaluation report set out four essential differences between a fire station and a public sports hall. The difference in core function and intensity of use: a fire station is first and foremost an operational, inward-facing building in which the sports space is not the main function and which is used by a limited group, whereas a sports hall is designed for intensive and near-continuous use by schools, clubs, recreational users and events. The difference in public character and accessibility. The difference in the complexity of user flows — rapid intervention routes versus the simultaneous circulation of athletes, spectators and staff, with a necessary separation between wet and dry circuits and peak flows during matches. And finally sports-technical standards: ventilation geared to high physical exertion and fluctuating occupancy, control of reverberation and noise in ball and group sports, glare-free lighting to sports standards. The decision was notified on 18 June 2026 by registered letter and email, with an extract of the selection decision. On 3 July 2026 the tenderer applied for suspension under extreme urgency of both the non-selection decision and any award decision taken in the meantime. An order of 6 July fixed the procedural calendar; the hearing took place on 23 July 2026, with the manager appearing in person. The single plea stood or fell on one reading of the tender documents. According to the tenderer, the wording of the selection criterion did not require the references to concern a public sports hall as such: ‘similar’ would relate to the nature of the building, so that any building broadly resembling a sports hall would qualify. The Council of State rejected that core assumption. The wording appears clear: it must indeed concern a design for the construction or renovation of a public sports hall, and the word ‘similar’ relates to that sports hall — the reference hall must be similar to the hall to be designed, and it must be publicly accessible. In the judgment’s own words: from the outset it had to be a matter of similar sports halls, not of similar buildings. To that comes the second requirement, the minimum execution amount of 3,500,000 euros excluding VAT. The Council also looked into the tenders of the other bidders, filed confidentially by Farys and which it was entitled to inspect. Those showed, at least prima facie, that each of them had submitted at least two references for the construction of sports halls; only the applicant came with one sports-hall reference plus a fire station. The argument that Farys had introduced new criteria at the evaluation stage also failed: what the evaluation report contains is an explanation of a criterion already included in the tender documents, namely the requirement that a public sports hall be put forward as a reference project. On the merits, the Council held that a fire station is at first sight not comparable to a public sports hall: the fundamentally different purpose, functional layout, programme requirements, user profiles and technical needs mean that the two types of building each call for their own design approach. The four arguments advanced by Farys appeared prima facie sound, robust and sufficient to support the conclusion. The counter-argument that those differences concern only the operation of the building and not the architectural or technical design competence also failed: how a building will be used, which user flows it must handle and which functional requirements it must meet form an inseparable part of the design challenge. The single plea was not serious. On 27 July 2026 the Council dismissed the application and ordered the applicant to pay the costs: a roll fee of 200 euros, a contribution of 26 euros and a procedural indemnity of 770 euros payable to Farys.
Why does this matter?
The question this judgment turns on looks linguistic, but in practice it decides who gets to compete: what does the word ‘similar’ attach to? The tenderer read it as an adjective qualifying ‘building’ — anything resembling a sports hall closely enough counts. The Council reads it as an adjective qualifying ‘sports hall’: the reference hall must be similar to the hall to be designed. Once tender documents name a building type, that type is fixed and ‘similar’ operates on scale and type within that category, not on its boundary. The judgment’s key sentence — from the outset it had to be similar sports halls, not similar buildings — is a usable rule of thumb for any reference requirement you read or draft. The judgment is equally instructive for what the Council expressly refuses to accept: the argument that an authority explaining in its evaluation report why a reference falls short is thereby introducing new criteria. Explaining is not adding. The distinction is subtle but real: giving concrete content to an existing criterion is reasoning; adding a requirement nobody could read in the tender documents breaches transparency. Farys stayed on the right side of that line precisely because the four differences it invoked — core function, public character, user flows and sports-technical standards — are all ways of filling in what ‘public sports hall’ means. Worth noting too is how the Council uses the confidentially filed tenders of the other bidders. It was entitled to inspect them without disclosing them to the applicant, and found that all the other tenderers did have two sports-hall references. That is a quiet but powerful finding: it shows the bar was attainable and disposes in one sentence of the complaint that the criterion unreasonably restricted competition. Finally, the scope of review. The Council does not assess whether it would itself consider a fire station comparable to a sports hall; it examines whether the authority’s position is prima facie unreasonable, disproportionate or insufficiently careful. That is classic marginal review, and here it works in the authority’s favour — just as, in other cases where the reasoning does fall short, it works in the tenderer’s.
The lesson
For tenderers: a reference requirement that names a building type cannot be circumvented with functional analogies. Spans of 34 metres, changing rooms, a cafeteria and even badminton in the appliance bay do not turn a fire station into a public sports hall. If you are short of a reference, you have two real options, and both must be raised before submission: ask during the question round whether a related building type is accepted, or challenge the reference requirement itself as disproportionate — not after you have been eliminated. If you later receive a request for clarification, use it to complete missing documents; it is not the moment to replace a missing reference with a plea. And factor in the costs: a dismissed extreme-urgency application cost 200 euros in roll fees, 26 euros in contributions and a 770-euro procedural indemnity here. For contracting authorities: this is how a selection criterion should be defended. Farys named the building type explicitly (‘public sports hall’), attached a measurable threshold to it (at least two references, each of at least 3,500,000 euros excluding VAT, within five years), expressly justified the departing five-year period under article 68, § 4, 1°, b of the Royal Decree of 18 April 2017, and on rejection set out four concrete, substantive differences instead of a single formula. Work that way and you need not fall back on explanations that come too late. Do make sure you explain rather than add: every argument in your evaluation report must be traceable to a requirement that was already in the tender documents.
Ask yourself
When you draft a reference requirement: do you name the building type or type of contract explicitly, and is it clear what the word ‘similar’ attaches to — the type itself, or the scale within that type? If you reject a reference, can you trace your reasoning back to a requirement that was already in the tender documents? Have you checked that other tenderers can in fact meet the requirement, so that its proportionality is demonstrable? And as a tenderer: did you place your references word for word alongside the selection criterion before submitting, and use the question round to remove doubt rather than saving it for litigation?
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 →