An outplacement certificate is not a training mandate: VMC & Partners trips over a single box in the VDAB specifications
VMC & Partners was excluded from the VDAB tender for training commercial representatives because it could produce neither a mandate for free competence development nor an accepted alternative certificate, and its argument that its CERTO certificate — co-signed by the VDAB’s own managing director — should suffice did not hold: that certificate concerns outplacement, the contract concerns training, and passing the qualitative selection does not replace the administrative requirement.
What happened?
On 30 June 2011, through a notice in the Belgian Bulletin of Public Procurement, the VDAB — the Flemish public employment and vocational training service — launched an open call for tenders for a services contract for ‘training of commercial representatives’. The contract formed part of the 2010-2011 employment and investment plan, under which the Flemish Government made extra funds available to generate training capacity in a time of economic crisis and to set up courses for bottleneck occupations. Specifically, it covered training as a commercial representative for 36 jobseekers in three groups of twelve, to be awarded lot by lot on the basis of the most economically advantageous tender. The estimated value was 48,000 euros excluding VAT — well below the European threshold. Specifications no. 70/2011/02 split the qualitative selection across two articles. Article 2.9.1.1 contained the selection criteria proper, including technical capability: through CVs and a maximum of three reference assignments from the last three years, the bidder had to show that its staff had experience with training commercial representatives, and the placement supervisors had to have both experience in supervising placements and knowledge of the safety rules. Article 2.9.1.2 additionally contained ‘administrative requirements’. Under A.2, the bidder had to hold a mandate for free competence development (MKCO), or attach a declaration that the application for it had been submitted; the service provider had in any event to hold the mandate at the time of award and throughout the contract. Under A.3, a bidder without such a mandate had to hold a Q*for, ISO or CEDEO certificate, Recognised for Excellence, a K2c, K2b or K2a training label, an ESF label, the Blik op Werk quality mark, or ‘another certificate accepted by the VDAB board of directors’. By the deadline of 25 August 2011 at noon, three undertakings had tendered: VMC & Partners, Syntra Limburg and ASAP. In the award report of 12 September 2011, the VDAB found under point 4 that all three had supplied the required documents and references and therefore satisfied the qualitative selection. Under point 5, however, VMC & Partners came unstuck: its tender was held substantially irregular ‘because they do not hold a mandate for free competence development. Nor was any document added showing that this had been applied for, nor evidence of a certificate accepted by the board in this connection. Reference is made only to CERTO, but this is not a certificate recognised by the VDAB board of directors.’ Only the tenders of Syntra Limburg and ASAP were then assessed against the award criteria; ASAP obtained the highest total score for all three lots and won the contract. VMC & Partners was informed by letter of 13 September 2011, with the reasoned award decision attached and notice that a standstill period of fifteen calendar days would be observed; the company noted that the specifications reference in that letter was wrongly stated. On 23 September 2011 VMC & Partners applied, without a lawyer, for suspension under extreme urgency — its letter served as the application. It argued two things. First, that its CERTO certificate of 17 November 2010, issued by the certification body of the outplacement sector, had to count as ‘another certificate accepted by the VDAB board of directors’: CERTO is after all a collaboration between Federgon and the VDAB, and the certificate was co-signed by Fons Leroy, vice-chairman of CERTO and managing director of the VDAB — the same man who signed the letter about the award decision. It therefore asked for a copy of the board minutes in which CERTO was said not to be recognised. Second, that the phrase ‘in this connection’ referred to the subject of the contract, which had two elements: ‘training as a commercial representative’, for which the VDAB had already acknowledged its capability in the selection, and ‘for jobseekers’, for which the CERTO certificate was precisely the proof. The Council of State observed that the application named no infringed rule or principle of law at all, and characterised the complaint itself: in essence it amounted to a breach of the substantive duty to state reasons, which requires the contested decision to rest on grounds that are factually correct and legally acceptable. Because the Law of 23 December 2009 applied, no serious harm that is difficult to repair had to be proved — and thanks to article 65/31 that also held for this below-threshold contract. Only the seriousness of the plea therefore had to be examined, and the VDAB’s objection of inadmissibility did not need to be ruled on. The Council first placed the requirement in its regulatory context. The Flemish Government decree of 5 June 2009 on the organisation of employment mediation and vocational training allows a person whose purpose is competence development — ‘any measure intended to give a person the ability to perform occupational work’ — to be mandated to carry out free competence development. Article 28, 4°, of that decree lists the quality certificates that qualify, and the list in article 2.9.1.2, A.3, of the specifications reproduces it almost verbatim, with two entries not worded identically. In the Council’s view the VDAB thereby sought to allow those not yet mandated, or who had not yet applied, but who held one of those labels, to compete. In its observations the VDAB linked those requirements to technical capability, specifically to the educational and professional qualifications within the meaning of article 71 of the Royal Decree of 8 January 1996. The Council flagged a tension there: article 2.9.1.2 does sit under the heading ‘Qualitative Selection’, but the actual capability criteria are in article 2.9.1.1 and make no reference to those certificates. It did not pursue the point, for a simple reason: the specifications provide in any event that the contract cannot be awarded to a bidder without a mandate or accepted alternative certificate, and VMC & Partners did not claim — let alone show — that this provision was unlawful. On the CERTO certificate itself the Council was clear. According to the observations, it is a certificate for outplacement agencies in the context of collective redundancies, guaranteeing the quality of the services provided to the companies and workers concerned. VMC & Partners itself stressed that it was an ‘outplacement certificate’, whereas the contract concerned training. The guidance outplacement agencies give in collective redundancies must be distinguished from the vocational training an agency may additionally offer. A CERTO certificate therefore did not appear comparable to the certificates listed in the specifications. That the VDAB’s managing director is involved in both the CERTO certification and the VDAB did not, prima facie, lead to a different conclusion. Further arguments developed only at the hearing changed nothing: they could already have been set out in the application. As to the requested copy of a board decision, the Council noted that no separate decision appears to have been taken — the assessment is contained in the contested decision itself. The second limb failed too. ‘In this connection’ refers, in the Council’s view, once again to the mandate for free competence development and not merely to ‘this contract’. And VMC & Partners did not show that satisfying the requirements of article 2.9.1.1 entails satisfying those of article 2.9.1.2: each article appears to require separate compliance. Establishing technical capability to run the training through CVs and reference assignments does not make one mandated or certified for free competence development. Neither limb was found serious, and therefore neither was the single plea. On 18 October 2011 chamber president Dierk Verbiest dismissed the application and ordered VMC & Partners to pay the costs, assessed at 175 euros. First auditor Luc Vermeire had given a concurring opinion.
Why does this matter?
This judgment concerns a small sum — 48,000 euros estimated, 175 euros in costs — but a mistake that recurs in every procurement: the difference between proving you can and proving you may. VMC & Partners had passed the qualitative selection. Its CVs and reference assignments convinced; the VDAB expressly acknowledged that it was technically capable of delivering the training. That is exactly what its reasoning was built on: if my capability is established, how can my tender be substantially irregular? The Council’s answer is sober: because the specifications ask for two different things, in two different articles, and each must be satisfied separately. A mandate or certificate is not evidence of capability but a condition of access — a box that must be ticked. The second point concerns equivalence. The category ‘another certificate accepted by the board’ looks open, but it is not: it refers to certificates the board has actually accepted, in the context of the mandate for free competence development. A certificate from an adjacent sector — outplacement rather than training — does not slide into it by itself, however related the target group. That the VDAB is institutionally involved in the certification body and its managing director co-signed the certificate does not turn that certificate into an acceptance by the board. Anyone relying on equivalence must have it confirmed before submitting, not defend it afterwards. Finally there is a lesson about litigation. VMC & Partners acted without a lawyer and named no infringed rule of law in its application; the Council generously characterised the complaint as a breach of the substantive duty to state reasons, but that is no guarantee. New arguments that surfaced only at the hearing were set aside because they could have been raised in the application. In extreme-urgency proceedings, where the application is virtually the only moment to put everything on the table, that is an expensive lesson. Note too that the Council itself flagged a weak point in the specifications — the administrative requirements sat under the qualitative-selection heading while the capability criteria did not refer to them — but could not pursue it because the applicant nowhere challenged the provision’s lawfulness. A plea that is not raised does not exist.
The lesson
Go through the specifications article by article before submitting and distinguish between what you must prove and what you must possess. References, CVs and experience belong to the first; mandates, approvals, labels and certificates to the second. Passing the qualitative selection says nothing about the administrative requirements, even when both sit under the same heading. If a mandate is missing, look at the way out the specifications themselves offer: here a declaration that the application had been submitted would have sufficed — a one-page document that would have prevented the whole case. If you are relying on an alternative certificate, never proceed on your own reasoning about equivalence. Ask the authority in writing during the question period whether your certificate is accepted, and keep that answer. A certificate from an adjacent field, however related the target group may seem, is not equated with a certificate for the activity the specifications target. Personal or institutional links between the authority and the certification body are not an argument. And if you go to the Council of State: put everything in the application. Name the rules of law you consider infringed, and hold no arguments back for the hearing — in extreme-urgency proceedings they will be set aside. If your case is not that you meet the requirement but that the requirement itself is unlawful, you must raise and substantiate that expressly; the Council will not do it for you. As a contracting authority the lesson is the mirror image: do not tuck access conditions under a heading that invites confusion. If your administrative requirements sit under ‘qualitative selection’ while your selection criteria do not refer to them, you are inviting precisely this misunderstanding — and a better-argued application could have made something of it.
Ask yourself
Have you split the specifications into requirements you must demonstrate and requirements you must simply hold at the time of award, and are you certain you have covered both categories in full? Do you hold the mandate or label required, and if not, have you submitted the application and attached the declaration to your tender? If you rely on an equivalent certificate: have you had that equivalence confirmed in writing by the authority before submitting, or are you relying on your own reading? Do you realise that passing the qualitative selection does not shield your tender from being held substantially irregular on another ground? And if you bring an action: are all your legal grounds and arguments in the application, including any challenge to the lawfulness of the requirement itself?
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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 →