Suspension of award for control bureau Parking Loodswezen Antwerp: inconsistent application of technical competence selection criterion — applicant not selected for lacking insurance certificates while chosen tenderer also could not prove insurance was actually concluded for one reference
The Council of State suspended the award of the control bureau contract for Parking Loodswezen in Antwerp, finding the contracting authority inconsistently applied the technical competence selection criterion by not selecting the applicant for lacking proof of concluded ten-year liability insurance for reference projects, while the chosen tenderer also could not prove insurance was actually concluded for one of its two references as works were still ongoing.
What happened?
The Antwerp Autonomous Municipal Agency for Mobility and Parking tendered a services contract for a control bureau for an underground parking garage (3 levels, 400 spaces) near the Waasland Tunnel. The specifications required two references of similar complex construction projects with certificates proving ten-year liability insurance was concluded for stability works of at least €5M. No tenderer initially submitted the required certificates. Using Article 66 §3, all tenderers were given the opportunity to provide proof. The applicant (90+ years of experience) submitted intention declarations from insurers, certificates of good execution, and a declaration on honour. The chosen tenderer submitted a concluded policy for reference 1, but for reference 2 only a broker's declaration that activities 'are intended' for concluding the insurance — the works were still ongoing. The Council found the contracting authority applied its strict interpretation inconsistently: the applicant was rejected while the chosen tenderer was in essentially the same position for one reference. This violated the equality principle and the patere legem rule. Suspension was ordered.
Why does this matter?
This ruling demonstrates that a contracting authority choosing a strict interpretation of selection criteria must apply it consistently to all tenderers. Inconsistent application violates the equality principle.
The lesson
Apply selection criteria consistently to all tenderers. If you require strict proof from one, apply the same standard to others. As tenderer: investigate whether the chosen tenderer actually meets the same requirements applied to reject you.
Ask yourself
Have you interpreted and applied selection criteria identically for all tenderers? Does the chosen tenderer actually meet the same requirements you used to reject the applicant?
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 →