Suspension of non-selection for container transport due to insufficient motivation — decision fails to mention that tenderer had meanwhile obtained and transmitted required approval
The Council of State suspends the decision of Intradel not to select SCES Recol'Terre for lot 4 of a public services contract for container transport and emptying at recycling parks, because the motivation for the non-selection is insufficient: at the time of the decision, Recol'Terre had meanwhile obtained the required approval as transporter of asbestos-cement and transmitted it to Intradel, but the decision makes no mention of this document and gives no reasons why it was not taken into consideration.
What happened?
Intradel, an inter-municipal association grouping 72 municipalities in the Province of Liège, tendered through an open procedure with European publication a services contract for the transport and emptying of large-volume containers at its recycling parks, divided into four lots by geographical zone. The specifications contained two provisions regarding the approval as collector and/or transporter of asbestos-cement in the Walloon Region. The administrative clauses (article 78 — content of tenders) required proof of this approval to be attached to the tender. The technical clauses stated that tenderers must have this approval 'at the start of the contract' — a date more than one year after tender submission (1 January 2025 versus tender opening 15 September 2023). On 15 September 2023, SCES Recol'Terre submitted a tender for lot 4 without attaching proof of the approval, but including a sworn statement that an application had been filed. Three months later, before the award decision, Recol'Terre obtained the approval and transmitted proof to Intradel. On 22 February 2024, Intradel decided not to select Recol'Terre and to award lot 4 to Veolia-Deveux Container. Recol'Terre filed three branches of a single plea. On the first branch (approval only needed at contract start), the Council found the administrative clause requiring proof attached to the tender implies the tenderer must have it at submission. The technical clause merely warns that approval must remain valid at contract start. Not serious. On the second branch (ambiguous specifications), the Council found no ambiguity. Moreover, Article 73 of the Royal Decree does not allow reliance on third-party capacity for Article 66 criteria (professional aptitude). Not serious. On the third branch (insufficient motivation), the Council found the motivation clearly insufficient: at the time of the decision, Recol'Terre had obtained and transmitted the approval, but the decision made no mention of this document and gave no reasons for not considering it. Serious. In the balance of interests, no negative consequences of suspension were identified. Suspension was ordered.
Why does this matter?
This ruling illustrates that the formal duty to state reasons requires the contracting authority to take into account — or at minimum mention and explain — all relevant elements available at the time of its decision. When a tenderer transmits a previously missing document before the award decision, the non-selection decision must at least acknowledge receipt and explain why the document was not accepted. A decision that fails to do so is insufficiently motivated, even if the non-selection might be substantively defensible.
The lesson
As contracting authority: when a tenderer submits missing documents before the award decision, explicitly address this in your motivation — even if you consider the document late. Explain whether and why you take it into consideration or not. Silently ignoring received documents breaches the duty to state reasons. As tenderer: ensure all required documents are attached to your tender. A clause stating you must hold an approval 'at the start of the contract' does not necessarily mean you need only have it at that point — administrative clauses requiring proof attached to the tender prevail as a selection criterion.
Ask yourself
As contracting authority: if I am not selecting a tenderer for a missing document, have I verified whether that document was meanwhile submitted? If so, have I mentioned receipt in my decision and explained why I am not taking it into consideration? As tenderer: have I attached all supporting documents required as selection criteria by the specifications, even if the technical clauses mention a later date?
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 →