Suspension rejected for Sint Martinus Church organ restoration in Aalst: selection criterion requiring master's degree in wood conservation proportionate and relevant
The Council of State rejects the urgent suspension application by Orgelbau Schumacher against its non-selection and the award of the organ restoration of Sint Martinus Church in Aalst to TM Monument Vandekerckhove – Altritempi, finding the selection criterion requiring a master's degree in Wood Conservation/Restoration for the person leading the restoration works to be relevant and proportionate given the subject matter, and Schumacher itself having acknowledged it cannot meet this criterion.
What happened?
The city of Aalst tendered through an open procedure for the restoration of the organ of Sint Martinus Church — dismantling, restoration of the case, internal mechanism and pipes, making the organ playable again, reassembly and intonation. The specifications required among the selection criteria: (A2) a project leader with minimum five years' experience and two references, (A3) a person responsible for leading the restoration works with a master's degree in Wood Conservation/Restoration and at least five years' experience, and (B1-B3) three specific references. A2 and A3 could be the same person. Three tenderers submitted offers. On 2 November 2023, the city asked Schumacher to confirm who would lead the works and provide the missing master's degree and health and safety plan. Schumacher responded that nobody on its team held a specific master's degree in Wood Conservation/Restoration. The evaluation report concluded Schumacher was not selected for two reasons: failure to meet A3 and failure to provide the health and safety plan. The contract was awarded to TM Monument Vandekerckhove – Altritempi on 5 February 2024. Schumacher filed three pleas. On the third plea (A3 disproportionate), the Council found A2 and A3 to be genuinely different criteria in scope and content, and the degree requirement to be proportionate given the 18th-century organ with ornate wooden casing. On the first plea (health and safety plan not a valid selection criterion), the Council found this to be a superfluous ground: non-selection based on A3 alone was sufficient. On the second plea (references of chosen tenderer insufficient), the Council found both B2 and B3 references satisfactory. All pleas were rejected.
Why does this matter?
This ruling confirms that contracting authorities may impose strict and specific selection criteria for highly specialised restoration works, including degree requirements, provided they relate to and are proportionate to the subject matter. The fact that two criteria may be fulfilled by the same person does not make one redundant — rather, it shows the authority respects proportionality by not unnecessarily requiring two different persons. The ruling also illustrates the superfluous ground doctrine: when non-selection rests on two grounds and the first stands, criticism of the second cannot lead to suspension.
The lesson
When tendering specialised restoration works, you may combine degree and experience requirements as selection criteria, provided each criterion is relevant to the contract's subject matter. Make criteria distinguishable in content and scope, but allow them to be fulfilled by the same person — this demonstrates proportionality. As a tenderer: if you acknowledge you cannot meet a selection criterion, it is unlikely to succeed in challenging that criterion as disproportionate afterwards.
Ask yourself
As contracting authority: is each of my selection criteria individually relevant and clearly distinct from the others? Do I allow criteria to be fulfilled by the same person where reasonable? As tenderer: if I do not meet a selection criterion, do I have stronger arguments than merely claiming it is disproportionate?
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 →