‘In order’ is not reasoning: the Council of State suspends the award of the Héron crematorium architecture contract because nothing shows the subcontractors’ references and ESPDs were ever checked
The inter-municipal company Neomansio awarded the full design contract for a cremation centre in Héron to Triangle Architectes and justified the qualitative selection of every tenderer in two words — ‘in order’ — even though the awardee relied on third-party capacity for structural engineering and special techniques and not a single document in the administrative file showed that those third parties’ commitments and ESPDs had ever been verified; the Council of State first dismissed the authority’s own objection to its jurisdiction and then suspended the award under extreme urgency.
What happened?
Neomansio is an inter-municipal company whose object is ‘the creation, acquisition, construction, organisation and management of cremation centres such as crematoria, ash gardens, funeral homes and ancillary services’. On 20 June 2025 its board approved specifications no. 2025/003 for the architecture services attached to the Héron cremation centre, estimated at 635,000 euros excluding VAT. The contract notice was published on 4 July 2025 on the national e-Procurement platform and in the Official Journal of the European Union. The procedure chosen was the open procedure, with seven selection criteria. Three offers came in: from the grouping of Atelier d’architecture Mathen and HE Architectes, from the Lacomble Architecture consortium, and from Triangle Architectes. On 14 August 2025 Neomansio questioned two of them — HE Architectes and the first applicant — about their reference for selection criterion no. 2, asking them to justify the amount relating to the ‘funeral parlour’ in the strict sense; for the applicants it added that what their offer described looked like ceremony, reception and welcome halls rather than a funeral parlour. They replied on 27 August 2025, HE Architectes on 29 August 2025. Triangle Architectes was asked nothing about its references. On 5 November 2025 the director-general drew up a tender evaluation report, and on 14 November 2025 the board awarded the contract to Triangle Architectes. That is the contested decision. The applicants sought suspension under extreme urgency on 17 December 2025; Triangle Architectes intervened on 6 January 2026. The Council first had to rule on its own jurisdiction. Neomansio itself raised — and left to the Council’s wisdom — the point that it might not be an administrative authority: it was not created directly by decree and in principle binds only its members, so that, following the Court of Cassation’s judgment of 13 June 2014, the ordinary courts might have jurisdiction. The Council did not follow. Neomansio is an inter-municipal company subject to the Walloon Code of Local Democracy and Decentralisation, and article L1512-6, § 1, first paragraph, of that code makes inter-municipal companies legal persons governed by public law, even where they take the form of a public limited or cooperative company — a characteristic that also appears in article 1 of its own articles of association. No court may set that statutory classification aside. It is therefore an administrative authority, and there is no need to examine whether it takes decisions binding on third parties. The cassation judgment relied on concerned a non-profit association, not an inter-municipal company; the ‘decision binding on third parties’ test belongs to private-law legal persons, not to bodies the legislature itself designates as public-law entities. On the substance, the applicants’ single plea targeted the reasoning on qualitative selection, with three complaints: how had selection criterion no. 2 been interpreted and applied; which references had been retained and on what factual basis; and had the awardee relied on third parties, with separate ESPDs and formal undertakings to make their resources available? The contested decision merely recorded, for each tenderer, that its position on the technical and professional capacity criteria was ‘in order’. The Council recalled that formal reasoning on a positive selection may be succinct where the selection procedure raises no particular difficulty — but that it must then be verifiable on reading the administrative file, and that file must be capable of showing that the authority satisfied itself of the reality of the capacities relied on. Where a difficulty does arise, the reasoning must state it and explain why it has been dispelled. For criterion no. 2, the questions asked indicated that an examination had indeed taken place. For the five other criteria, by contrast, the administrative file contained no concrete evidence of any effective verification — for instance a summary table per selection criterion, as in the case leading to judgment no. 260.280 of 26 June 2024, to which Neomansio referred in its own observations. Yet precise references were required for those criteria too, including specifically for the structural engineering and special techniques parts, for which Triangle Architectes relied on third-party capacity. Neomansio maintained that those subcontractors’ undertakings and ESPDs were in the offer, but no document showed they had actually been checked: the evaluation report mentions only the verification of Triangle’s own ESPD, says nothing about the third parties, and the documents on the check of tax and social security debts did not concern them either. The particularly succinct reasoning thus appeared prima facie insufficient. A second finding came on top, and it surfaced only at the hearing. Confidential item D.4.2, concerning the file of subcontractor BICE, bears the date 4 August 2025 — whereas, according to the minutes of the opening, Triangle Architectes submitted its offer on 16 July 2025. Neither Neomansio nor the intervening party could explain the discrepancy; the authority merely suggested it might be the date the document was opened, without being able to confirm it. For that reason too the contested act, which does not address the question at all, prima facie breached the duty to state reasons. The applicants had a clear interest in the second and third complaints: with no knowledge of what led Neomansio to select the awardee, they could not verify whether it genuinely met the selection criteria or whether those criteria had been applied uniformly to all tenderers, and they lost the safeguard against administrative arbitrariness. Contrary to Neomansio’s argument, they did not have to explain how articles 73 or 78 of the Law of 17 June 2016 had been breached in order to raise a defect in the formal reasoning. The first complaint no longer needed examination. On the balance of interests, Neomansio identified no adverse consequence of a suspension and the Council saw none either. The intervention was admitted, suspension ordered and immediate execution of the judgment directed. Item 4 of the applicants’ file, items B, C, D, E.2 and F of the administrative file and items 3 and 5 of the intervening party remain confidential; costs, including the procedural indemnity, were reserved.
Why does this matter?
Two lessons rarely found together so sharply in one judgment. The first concerns whom you can bring before the Council of State. An inter-municipal company taking the form of a cooperative company remains a public-law legal person because the legislature classifies it as such. The cassation test of the ‘decision binding on third parties’ — designed to determine whether a private-law entity such as a non-profit association is nonetheless an administrative authority — has no place there. Strikingly, it was the contracting authority itself that doubted the Council’s jurisdiction; the Council removed that doubt, which is useful certainty for anyone litigating against an inter-municipal company. The second lesson concerns what succinct selection reasoning must be able to carry. Two words — ‘in order’ — are not necessarily too few: where selection raises no difficulties, the reasoning may be brief. But the scrutiny then shifts to the administrative file, and that file must show that the authority genuinely satisfied itself of the capacities relied on. Here the floor gave way: outside criterion no. 2 there was nothing — no table, no note, no trace of a check — while five other criteria required precise references and the awardee relied entirely on third parties for two technical parts. That those third parties’ undertakings and ESPDs were in the offer is not enough: presence in the offer is not proof of verification by the authority. Notable too is how the case turned on something nobody had put on paper. The date 4 August 2025 on a subcontractor’s document, against an offer submitted on 16 July 2025, surfaced only at the hearing and remained unexplained. The Council treats this not as a separate plea about the offer’s regularity but as a second defect in reasoning: the decision says nothing about a discrepancy the file itself raises. An authority that does not read its own file before awarding leaves such questions to the other side and to the auditor.
The lesson
As a contracting authority, treat succinct selection reasoning as a promise your file must keep. If you want to make do with ‘in order’, make sure the administrative file shows what you checked: per criterion, per reference, and expressly for the third parties on whose capacity a tenderer relies. A summary table of the seven criteria costs you half an hour and is exactly the piece of evidence that was missing here. Do not forget subcontractors: their undertaking to make resources available, their ESPD and their tax and social security position deserve checking and documenting just as much as the tenderer’s own. And read your own documents: a date falling after the offer was submitted is a question you must answer before awarding, not at the hearing. As a tenderer, do not be deterred by the fact that an authority may justify its selection in a single line. The question is not how short the decision is but whether the file withstands scrutiny. Ask for access, compare what was checked against what the contract documents require, and focus above all on the parts where your competitor relies on third parties — that is where the gap usually sits. You need not show that the awardee fails the selection, nor map out a breach of articles 73 or 78 of the Law of 17 June 2016 in order to raise a defect in reasoning. And if an inter-municipal company questions the Council’s jurisdiction: it is an administrative authority there, corporate form or not.
Ask yourself
Does your administrative file show, criterion by criterion, what you actually checked — or does your decision rest on the bare statement that everything is in order? Where a tenderer relies on third-party capacity, have you verified and recorded those third parties’ undertakings, ESPDs and tax and social security position? Have you checked the dates and signatories on the documents in the offer against the minutes of the opening? And as a tenderer: do you realise that brief reasoning is not unlawful in itself, but that the file must be able to carry it — and have you requested the file on that point?
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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 →