A contracting authority that secretly factors budget allocation into a methodology criterion rewrites its own specifications — and gets suspended
The Walloon Region scored the methodological award criteria partly on the basis of budget allocation and person-days that were nowhere announced as criteria in the specifications; the Council of State suspends the award because this modifies the criterion a posteriori or makes it unforeseeable.
What happened?
On 8 February 2016 the Walloon Region published an open tender for the 'Facilitateurs P.E.B.' contract — scientific and technical guidance on energy performance of new builds and renovations for 2016-2017 (specifications 04.04.01-16A39). Three award criteria totalling 100 points: (1) methodology for the quality of technical guidance, 30 points; (2) methodology for following up on procedure, software and document changes, 30 points; (3) price, 40 points. Four bidders; one not selected. On 28 April 2016 the three remaining bids were evaluated. UWA/PMP/CERAA scored 90 points and won at €251,521.49 incl. VAT. ULiège/UMons scored 84.5 points. The full gap sat in the two methodological criteria: ULiège/UMons received 25 + 20.5 (total 45.5) versus 25 + 25 (total 50) for UWA/PMP/CERAA. The Universities found that the contracting authority justified their lower score by referring to their budget allocation: 88% of the budget and 371 of 410 person-days were on a single item (P.E.B. responsible-officer guidance), which according to the contracting authority 'left little room for the other aspects'. Crucial: this budget allocation appeared in annex 1 'Prix Global' of the specifications — an annex meant for price verification, not for methodology criteria. The award criteria as defined in the specifications contained no reference to budget or person-days. The Universities sought suspension for breach of transparency, equality and the principle patere legem quam ipse fecisti. The Walloon Region defended itself with ruling n° 223,427 of 7 May 2013 on execution times: where time is an award criterion, the authority must assess whether it is realistic — by analogy here it could test the feasibility of the methodology against budget and person-days. The Council disagreed. Two possible readings, both fatal: either it was a 'feasibility test' — which belongs to selection or regularity assessment, not to award, and once the contracting authority declared the bid regular it could not revisit that; or it was a real comparison based on budget allocation — and then this scoring approach should have been announced in the specifications, since it influences how bidders present their offers. By not announcing it, the Walloon Region 'at least made the award criteria unforeseeable'. The plea is serious and sufficient for suspension. The other pleas are not examined. Suspension granted.
Why does this matter?
Contracting authorities often look for ways to test whether a bid is 'realistic' — rightly so, because bids with unfeasible promises are problematic. But this ruling draws a sharp line: budget-based 'feasibility' belongs to selection or regularity, not award. And if you do want to factor budget or person-days into a methodological criterion, you must announce it explicitly in the specifications. For bidders this means that an award decision motivated 'suspiciously specifically' on something not announced as a criterion is a strong suspension argument.
The lesson
When the motivation of an award decision refers to elements not stated as award criteria or sub-criteria in the specifications — think budget allocation, person-day allocation, experience indicators — there is a gap between the specifications and the evaluation. Immediately request access to the motivation and check: did this element appear as a scoring factor in the specifications? If not: file a suspension request. Either it belongs to selection/regularity (and could not be weighed in award), or it should have been in the specifications.
Ask yourself
Take the motivation letter of the award decision. Underline every concrete reason you lost points. For each underline: search for the matching sentence in the specifications. No match? Then your award criterion has effectively been modified after opening — a serious suspension argument.
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 →