SWDE strikes Sodraep from its 'Réseaux' qualification system for three years — but skips the statutory fifteen-day warning
After a troubled 2.87-million-euro pipeline project between Spiennes and Mons, the Walloon water company SWDE excluded contractor Sodraep from all its contracts under article 48 of the Royal Decree on execution rules and struck it from its 'Réseaux' qualification system; the Council of State — against the auditor's opinion — held that it had jurisdiction over that removal, ruled that it cannot be the automatic consequence of the article 48 sanction, and suspended it under extreme urgency because SWDE had, undisputedly, ignored the statutory fifteen-day warning period.
What happened?
Sodraep had been qualified in SWDE's 'Réseaux' system since 1 February 2013, in five-year periods. Within that system it won, on 23 September 2015, the works contract for replacing the DN350 pipe with a DN600 between the Spiennes wells and the Mons reservoirs, for 2,868,836.02 euros excluding VAT. Execution, started on 4 January 2016 with a 300-working-day deadline, became an ordeal: reports of defects, notices of default, complaints from residents, municipal authorities, the Walloon Parliament and even the nature association Natagora. On 8 September 2022 SWDE heard the company — which apologised — and on 16 November 2022 its management committee decided to exclude Sodraep from all its contracts under article 48 of the Royal Decree of 14 January 2013 and to remove it from the qualification system for three years. Sodraep challenged only that removal. SWDE argued that the Council of State lacked jurisdiction: article 48 concerns contract execution, a matter for the civil courts (judgments nos. 245.962 and 250.131). The Council disagreed: removal from a qualification system is not the necessary and immediate consequence of an article 48 sanction. That sanction is merely an optional exclusion ground, and under article 70 of the law of 17 June 2016 the contractor must always be able to invoke corrective measures; a removal therefore requires a decision of its own, which falls under the remedies law of 17 June 2013 and over which the Council does have jurisdiction. On the merits, the first plea struck home immediately: article 7, § 2, second paragraph of that law requires the authority to announce its intention to withdraw a qualification at least fifteen days in advance, with reasons and the opportunity to comment. The summons of 30 August 2022 said nothing about this; the letter of 2 September 2022 referred only 'laconically' to a possible application of article 48. That the provision had been breached was not even disputed. The Council ordered the suspension under extreme urgency, with immediate execution; costs were reserved.
Why does this matter?
The judgment draws a sharp and practically important line in utilities-sector litigation. An exclusion under article 48 of the execution rules concerns contract performance and escapes the Council of State — but as soon as the authority couples it with removal from its qualification system, it takes a challengeable procurement decision over which the administrative court does have jurisdiction. Authorities cannot sidestep the remedies law of 17 June 2013 by filing everything under 'article 48'. The Council moreover formulates three conditions for such a removal: the absence of optional exclusion grounds must genuinely condition access to the system and be verified, the contractor must be able to demonstrate corrective measures, and the authority must give reasons for finding them insufficient. The judgment thereby confirms that even a seriously defaulting contractor can never be barred absolutely and irrevocably from future contracts. The procedural flaw that decided the case is almost banal but no less instructive: the fifteen-day warning period of article 7, § 2 is no formality, and whoever skips it sees the sanction suspended — however well-founded the complaints about the site may be.
The lesson
For utilities-sector authorities: if you want to remove a contractor from your qualification system, treat that as a separate decision with its own procedure — announce the intention at least fifteen days in advance with reasons, let the contractor respond, examine its corrective measures and explain why they do not suffice. An article 48 sanction is no free pass. Be transparent in the summons to a hearing too: announcing only 'problems on the site' and then deciding a three-year removal breaches the right to be heard. For contractors: look closely at what exactly was decided. A pure article 48 exclusion belongs before the civil courts, but a removal from a qualification system can be suspended by the Council of State within fifteen days — and a breached warning duty is a formidable plea. Meanwhile, document your corrective measures: they are your ticket back into future contracts.
Ask yourself
Do you know that removal from a qualification system is a challengeable procurement decision within the Council of State's jurisdiction, even when it stems from execution problems? As an authority, did you announce the intended removal at least fifteen days in advance, with reasons and the opportunity to comment (art. 7, § 2 of the law of 17 June 2013)? Does your summons to the hearing clearly state which measure you are considering? Did you genuinely examine the contractor's corrective measures before deciding? And as a contractor: did you react within the urgency deadline and document your corrective measures?
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 →