The actual subject matter of the contract determines the required contractor recognition category — and the opening report need not be actively distributed
The Council rejects two grounds: the contracting authority could reasonably require recognition in subcategory F2 because steelwork represents the largest percentage of the contract sum, and not actively distributing the opening report via e-Procurement is not a violation when the provisional ranking was communicated.
What happened?
The City of Oudenburg awards the fitting out of a lookout point in a church tower through an open procedure (price as sole criterion) to BV S.M. The applicant partnership, initially lowest-ranked, becomes second after arithmetic verification because they had not included the options in their total price (from €511,449 to €586,306). They raise two grounds. First ground (three parts): (1) no opening report communicated, (2) insufficient reasoning for the arithmetic verification that changed the ranking, (3) no reasoning on how quantity corrections proposed by the applicant were handled. Second ground: the required recognition in subcategory F2 (metal load-bearing structures) is too narrow — the complexity of works in a church tower requires category D or at least F, which the chosen tenderer lacks.
Why does this matter?
This judgment provides clear guidance on three fronts relevant to daily procurement practice. First, contractor recognition: it is the actual subject matter and actual scope that determine which recognition category is required, not the formal label in the specifications. A contracting authority may opt for a subcategory if the relevant specialty represents the largest percentage of the contract sum — even if the contract includes additional works of other types. The mere fact that there is a 'site coordination' item or that works take place in a difficult environment (church tower) does not make it a 'complex contract' within the meaning of the Recognition Ministerial Decree. Second, opening report: with electronic submission via BOSA, the report need not be actively distributed. The authority must respond appropriately to an access request. Third, reasoning for arithmetic verification: when the ranking changes, this must be adequately reasoned, but the normative goal is met if the tenderer can assess on an informed basis whether the decision is lawful.
The lesson
An overly broad interpretation of 'complex contract' requiring recognition in a main category can restrict competition. Conversely: if the specific works (here: steelwork) represent the largest share, the corresponding subcategory is the right choice. Supplementary works are covered by art. 5, §6 of the Recognition Royal Decree.
Ask yourself
When determining the recognition category, did you check which type of work represents the largest percentage of the contract sum? That is the legal criterion, not an intuitive assessment of complexity. Do you send the provisional ranking to all tenderers via the e-Procurement platform after opening? That is the legal obligation for open procedures below the European threshold with price as sole criterion. When arithmetic verification changes the ranking, do you concretely reason why? The normative goal is that the tenderer can assess on an informed basis whether legal action is worthwhile.
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 →