Container repairs for AIVE: ‘quality and reliability of the service’ may indeed be an award criterion, and four days is not manifestly unrealistic
Zenobe attacked the award of the container-repair contract of the Walloon waste intermunicipal AIVE to competitor ASM with four pleas — confusion of selection and award criteria, an incumbent's knowledge advantage, an unexplained score and an unrealistic four-day repair period — but the Council of State, ruling under extreme urgency, found none of them serious and rejected the application.
What happened?
On 4 June 2012 the intermunicipal AIVE published a general call for tenders for the repair of containers for its container parks (specifications ‘Réparations conteneurs PAC 2013’), a contract based on a price schedule. Four award criteria: price (500 points), reduction of the repair period (200), quality and reliability of the service (200, split between equipment and staff) and editorial quality of the tender (100). Four tenders were opened on 3 August 2012; on 18 September the sector council awarded the contract to ASM, confirmed the next day by the board of directors. Zenobe — which had actually scored the maximum on the quality criterion (200 out of 200 against 50 for ASM) — went to the Council of State. Its first plea, that the quality criterion was a disguised selection criterion (the Lianakis case law), failed: the criterion measures the quality of the service offered on the basis of the announced performance, not the tenderer's general aptitude. The second plea criticised the absence of estimated quantities in the price schedule, allegedly favouring incumbent ASM; the Council replied soberly that nobody can predict how many containers will break down, and that at an information meeting on 27 June 2012 the AIVE had told Zenobe the annual volume (254 containers repaired, 50 to 60 paint jobs). The third plea attacked the score of 114 out of 200 for Zenobe's 7-day period (ASM offered 4 days, worth 200 points): the Council saw an obvious rule of three (200 × 4/7) requiring no further explanation, and held that a four-day repair period is not manifestly insufficient — a technical assessment it will not undertake, while the AIVE showed with invoices that repairs in 2012 were regularly completed in under four days. The fourth plea, against the equal score of 100 points for editorial quality, confused completeness of the tender with presentation and precision. No plea was serious: rejection, with 175 euros in costs for Zenobe. The tenders themselves remained confidential at this stage.
Why does this matter?
The judgment shows where the limit of the Lianakis case law lies, a doctrine eagerly invoked in procurement litigation: not every criterion referring to staff and equipment is a prohibited aptitude criterion. What matters is whether the criterion measures the quality of the service offered — here through the announced performance of the equipment and staff assigned to the contract — or the general capability of the company. That distinction, between ‘what the tenderer promises for this contract’ and ‘what the tenderer can do in general’, remains the touchstone under current legislation too. Equally practical is the treatment of the incumbent's knowledge advantage: the advantage exists, but for a price-schedule contract whose quantities are inherently unpredictable, the authority need not pour historical figures into the specifications — oral information at an information meeting can suffice to level the playing field. The judgment further teaches that a points allocation following an obvious rule of three needs no express explanation in the award decision, and that a tenderer calling a competitor's offered period unrealistic is in fact challenging the regularity of that tender — and must then do so expressly. Finally, the Council confirms that tenders may be withheld from the parties' inspection at the extreme-urgency stage.
The lesson
For contracting authorities: you may use the quality of the service as an award criterion and measure it by the equipment and staff the tenderer will assign to the contract — as long as the specifications make clear that it concerns the promised performance for this contract and not general company capacity. If you cannot estimate quantities in a schedule-based contract, document how you gave all candidates the same information; an information meeting with concrete volumes proved invaluable here. For tenderers: choose your pleas strategically. If you yourself scored the maximum on the contested criterion, you have little interest in the complaint; if you consider the winner's period unrealistic, challenge the regularity of that tender rather than merely its evaluation; and the authority need not spell out a transparent calculation rule behind the points. Finally, do not merely attack the scores, but show how a correct evaluation could have reversed the ranking.
Ask yourself
Do your specifications make clear that a quality criterion measures performance for this contract, not the tenderer's general aptitude? As the authority in a schedule-based contract without quantities, can you show that all candidates received the same information, for instance through an information meeting? As a tenderer, do you check whether the plea you want to raise can actually reverse the ranking — or did you score best on the contested criterion? And if you find the winner's period or price unrealistic: do you also expressly challenge the regularity of that tender?
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 →