Rejection of challenge to exclusion of St.Ar.Tech. for deficiencies in prior contract (La Sambrienne) — tenderer must spontaneously present corrective measures (Art. 70(2)) — Directive 2014/24/EU not applicable below EU threshold
The Council of State rejected the annulment action by St.Ar.Tech. against its exclusion from an architecture services contract for the eco-demolition of 192 apartments in Jemappes, confirming that the tenderer was obliged to spontaneously disclose the exclusion ground and present corrective measures under Article 70(2), that Directive 2014/24/EU does not directly apply to contracts below the EU threshold (€105,693 < €214,000), and that the audi alteram partem principle does not apply when the law expressly provides the procedure for communicating corrective measures.
What happened?
SCRL Toit & Moi tendered architecture services for the eco-demolition of 192 apartments in Jemappes via negotiated procedure with prior publication, estimated at €105,693 (below the €214,000 EU threshold). St.Ar.Tech., a joint venture of two architecture firms, submitted an offer without disclosing that it had been subject to unilateral contract termination by La Sambrienne (another social housing company) for serious deficiencies. St.Ar.Tech. did not present any corrective measures with its offer. Toit & Moi excluded St.Ar.Tech. under Article 69(7) and awarded to R+ Architecture. The Council rejected all four grounds of challenge: (1) the specifications clearly referred to Article 69(7) in its full scope; (2) the assessment of deficiencies was not manifestly unreasonable; (3) Article 70(2) clearly requires spontaneous presentation of corrective measures, Directive 2014/24/EU is not directly applicable below the EU threshold, and the audi alteram partem principle does not apply when the law provides the communication procedure; (4) acceptance of BREEAM certification as proof of capacity was not manifestly unreasonable.
Why does this matter?
This ruling is a reference decision on the interplay between facultative exclusion for prior deficiencies (Art. 69(7)), the obligation to spontaneously present corrective measures (Art. 70(2)), and the applicability of Directive 2014/24/EU below the EU threshold. The Council confirms that Article 70(2) clearly and sufficiently requires spontaneous disclosure, that the Directive is not directly applicable below threshold, and that the audi alteram partem principle does not apply when the law expressly provides the communication procedure.
The lesson
As a tenderer: if you have been subject to enforcement measures, termination or damages in a prior contract, you must disclose this and spontaneously present corrective measures with your offer under Article 70(2). Failure to do so means the contracting authority may exclude you without prior hearing. As a contracting authority: exercise your own assessment of the deficiencies based on available evidence, and ensure your formal motivation reflects this independent assessment.
Ask yourself
As a tenderer: have you been subject to enforcement measures in a prior contract in the last three years? Did you disclose this and present corrective measures with your offer? As a contracting authority: did you independently assess the deficiencies, or merely adopt another authority's assessment? Does your motivation reflect your own evaluation?
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 →