Announcing four award criteria and quietly using three — voidable
The Council of State annuls the award to Alineater because the municipality of Aubange had announced four award criteria in its tender documents but completely ignored the fourth (energy references) when comparing bids — and admitted having done so.
What happened?
The municipality of Aubange launched a negotiated procedure for an architectural assignment: building a refectory for the Rachecourt municipal school. The tender documents listed four award criteria, each scored out of 10: 'capacity for planning and administrative file management', 'reputation regarding timeliness and administrative file management', 'references in energy matters in construction' and 'total fees as a percentage of works amount for the whole assignment'. Before bids were submitted, no modification or deletion of any criterion was communicated to bidders. On 18 January 2012, the municipal college awarded the contract to Alineater. D.N.A-Architecte went to the Council of State. During the procedure the municipality admitted — literally — that the fourth criterion ('energy references in construction') was NOT taken into consideration when comparing bids. The Council annuls. The equality principle precludes a contracting authority from neutralising one of the announced award criteria when assessing bids. All bids must be evaluated against all announced criteria, even in a negotiated procedure. The wide latitude in negotiated procedures does not exempt from that rule — that latitude concerns the evaluation method, not the choice to 'skip' criteria. Breach of the equality principle and articles 10-11 of the Constitution. Decision annulled; municipality pays 175 euros in costs.
Why does this matter?
For bid managers: always compare the number of award criteria in the specifications with the number of score lines in the evaluation report. Missing one? Ask why. An authority that does not use a criterion because it 'turned out irrelevant' or 'was too hard to assess' has made a fatal error. For authorities: even in a negotiated procedure you are pinned to your own award criteria. If during evaluation a criterion does not work, you cannot quietly drop it — you must halt the procedure and relaunch with revised specifications (provided this is factually and legally acceptable — see judgment 231423).
The lesson
Before comparing a bid or diving into a file: count the award criteria in the tender documents. Then ask for the evaluation report or motivation. Count again. If one criterion is missing, you almost automatically have a ground for annulment. And an authority that admits not having used a criterion — as here — hands you the judgment on a platter.
Ask yourself
Take the latest evaluation report you encountered (as loser or as authority). Count: how many criteria did the specifications list, and how many did each bid receive a score on? If those numbers don't match, something is wrong. And the explanation 'we found that criterion not relevant' is no defence — the specifications should have been adjusted before submission.
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 →