Cleaning of ONSS administrative premises: suspension – the contracting authority must examine corrective measures before excluding, the obligation under art. 70(2) to proactively report corrective measures only applies with express mention in the tender documents
The Council of State suspends the ONSS's decision to exclude a cleaning company from the procedure for cleaning administrative premises (three lots), because the ONSS failed to examine the proposed corrective measures and because the obligation to proactively report such measures at the start of the procedure (art. 70(2)) only applies when the tender documents expressly refer to it — the mere use of the ESPD is insufficient.
What happened?
The ONSS tendered cleaning services for administrative premises in three lots. Company A. submitted an offer. It had a police report of 17 October 2022 for employment of a third-country national in illegal residence — a mandatory exclusion ground (art. 67(1)(7)). In response to the ONSS's inquiry, the company provided on 7 June 2023 a summary table of police reports with corrective measures taken, including the contested report but with a one-digit error in the number. The ONSS concluded the company had deliberately provided inaccurate information and excluded it. The Council held that: (1) the obligation to proactively report corrective measures (art. 70(2)) only applies with express reference in the tender documents — the ESPD alone is insufficient; (2) even for serious mandatory exclusion grounds, corrective measures must be examined before exclusion; (3) the ONSS had applied a less strict standard to another tenderer with comparable reports. Suspension ordered.
Why does this matter?
This ruling clarifies three crucial points: art. 70(2) (proactive reporting of corrective measures) is only active with express mention in tender documents; even mandatory exclusion grounds require examination of corrective measures; and the equality principle requires a consistent standard for all tenderers.
The lesson
As a tenderer: report all exclusion grounds and corrective measures fully and accurately, even without express reference in the tender documents. Carefully verify all police report numbers. As a contracting authority: include an express reference to art. 70(2) in tender documents if you want proactive reporting. Always examine corrective measures before excluding and apply a consistent standard.
Ask yourself
As a tenderer: have I fully reported all exclusion grounds and corrective measures with accurate police report numbers? As a contracting authority: do my tender documents expressly reference art. 70(2)? Have I examined corrective measures before excluding? Am I applying the same standard to all tenderers?
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 →