Requiring certificates of good execution for service references — is that allowed even when the Royal Decree doesn't prescribe it?
The Council of State rejects the suspension request of a soil analysis laboratory challenging its non-selection, ruling that a contracting authority may require certificates of good execution for service references even though article 68, §4 of the Royal Decree does not explicitly prescribe them for services.
What happened?
The City of Bastogne tendered soil sampling and analysis services. The technical capacity criterion required at least three references of similar services with certificates of good execution. Recosol submitted without the certificates and was not selected. Recosol argued that article 68, §4, 1°, b) of the Royal Decree only prescribes a 'list of principal services' as proof of technical capacity — without certificates of good execution, which are explicitly required only for works (art. 68, §4, 1°, a)). By requiring certificates not prescribed by the Decree, the authority would have exceeded the permissible means of proof. The Council disagreed. While the Decree doesn't specifically require certificates for services, the authority must be able to verify the reality of claimed references. The selection criterion uses a legally prescribed means of proof (list of similar services) supplemented with certificates confirming their reality — this is not manifestly unreasonable.
Why does this matter?
This ruling clarifies a common point of confusion: may an authority require certificates of good execution for service references? The Royal Decree explicitly requires them for works but is silent for services. The Council confirms that the authority may verify the reality of claimed references through certificates — the absence of an explicit requirement is not a prohibition.
The lesson
For contracting authorities: you may require certificates of good execution for service references, even though the Royal Decree doesn't explicitly prescribe them. Frame the criterion as a list of similar services (the legal means of proof) accompanied by certificates (the verification means). For tenderers: if the specifications require certificates with your references, provide them. The argument that the Decree doesn't prescribe them for services does not persuade the Council.
Ask yourself
Do the specifications require certificates of good execution with your service references and you didn't include them? That's prima facie a sufficient ground for non-selection.
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 →