Caught off guard by an unannounced tasting visit with no warm meal ready? Then your bid was the problem, not the contracting authority
The Council of State rejects Compass Group's extreme-urgency action against the award of a €4 million catering contract for the OCMW Aalst care homes to Sodexo, because the specifications expressly provided for an unannounced tasting visit at the production site stated in the bid — and the fact that Compass could only serve cold-line dishes at that visit is its own problem.
What happened?
The OCMW of Aalst tenders the preparation and delivery of fresh daily meals to its care homes, estimated at €4,106,756 ex VAT, under a negotiated procedure with prior publication. The specifications require fresh meals prepared, packaged and delivered 'on the warm line' for lunch, plus breakfast, afternoon snack and dinner. Five award criteria: meal price (50 points), price of extras (4), quality (28), action plan (10), menu proposal (8). For the quality criterion the specifications provide for an on-site tasting: a team — at minimum a cook, a dietician and a unit manager — comes 'to look and taste' at the company where the meals are prepared. The bidder must list in its inventory both the site and the time slots when tasting is possible. Scoring: taste (10), smell (6), look + texture (6), hygienic transport (6). After selection Compass Group and Sodexo Belgium submit bids. Compass writes that production will take place at its facility 'in Ghent or Asse (to be determined together with OCMW Aalst)' and that 'a sub-department will be set up exclusively for OCMW Aalst'. In the inventory Compass gives two production sites (AZ Jan Palfijn Ghent and OCMW Asse) with time slot 'Monday to Friday, between 8:00 and 12:00'. The assessment team makes an unannounced visit to Sodexo (kitchen of OCMW Dendermonde, 26 Sept 2016) and to Compass (kitchen of OCMW Asse, 3 Oct 2016). Sodexo serves tomato soup and vol-au-vent with mash — taste 8/10, smell 5/6, look 4/6, hygienic transport 6/6. Quality score: 23/28. Compass serves tomato soup, roast pork with meat sauce, plain potatoes and fennel — but the assessors find everything 'tasteless and bland'. Taste 4/10, smell 3/6 ('odourless'), look 4/6, hygienic transport 6/6. Quality score: 17/28. After the BAFO round Sodexo scores 92/100, Compass 84.44/100 — a 7.56-point gap. Compass goes to the Council of State. First ground: the assessment team allegedly tasted a cold-line dish 'knowingly and wilfully', while the contract concerns warm-line meals. The quality criterion was thus applied incorrectly and contrary to the specifications. Counsellor Pierre Barra rejects this on multiple fronts: (1) Compass nowhere proves that a cold-line dish is qualitatively inferior to a warm-line dish — formally contested by OCMW Aalst; (2) Compass wrote 'to be determined together with OCMW Aalst' in its bid and never stipulated warm-line presence at its sites — the contracting authority could not have known; (3) Compass asked no questions during the clarification phase; (4) a contracting authority cannot be required to set a tasting date 'by mutual agreement' when the specifications provide for an unannounced visit; (5) Compass has many references with warm-line sites — it could have listed one. Second ground: the sub-criterion 'hygienic transport' (6 points) was allegedly unlawful as an award criterion because it amounted to a check of compliance with statutory provisions, not a value judgement. The Council parks the ground: even if Compass were given full marks here, a 7.56-point gap cannot be closed with 6 points. No interest in the ground. Application rejected. Sodexo's intervention granted. Compass ordered to pay 200 euros docket fee and 700 euros procedural indemnity (plus 150 euros for the intervention).
Why does this matter?
For award criteria measured on-site — tasting visits, demos, mock-up sessions — only what you have explicitly claimed in your bid counts. Vague formulations like 'to be determined together with the contracting authority' or 'a sub-department will be set up' impose no investigation duty on the contracting authority. And whoever reads the specifications — 'unannounced visit', 'time slots when tasting will be possible' (plural, to avoid the team arriving when no tasting is possible) — must prepare for that or ask questions in advance. The rationale: the specifications apply equally to all bidders and the contracting authority may rely on what the bidder writes being what the bidder is offering. A second lesson: points add up arithmetically. A ground that can earn at most 6 points on a 7.56-point gap yields no interest — keep this in mind when choosing strategically which criticism to litigate.
The lesson
When specifications provide for a tasting visit, a demo or a mock-up session involving something concrete on-site: make sure your bid unambiguously states which production site you designate, what type of product (warm, cold, fresh, prepared) will be available there at any moment within your stated time window, and how it matches what the contract requires. 'To be determined together with the contracting authority' is not a bid — it is a negotiation point afterwards, and you will lose it. Doubts about how the specifications will be assessed? Ask your question during the clarification phase, not at the hearing. Second lesson: before applying for suspension, calculate whether the ground on which you stand strong can swing the ranking. A formally correct ground without arithmetical impact = action without interest.
Ask yourself
Reread your last submitted bid for a contract with a tasting session or site visit. Can an outside reader, on the basis of your bid alone, identify exactly: (1) which site, (2) on which days and hours, (3) what type of product will be available? If not, redo before submission — at the hearing you will be judged on what is written, not what you meant.
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 →