A 'social' award criterion looking at what happens to the textile after the contract — that's allowed, if it fits within the lifecycle
The Council of State rejects the suspension of Dilbeek's textile collection contract awarded to vzw Televil, ruling that the award criterion 'material aid' — which assesses how the contractor uses collected textiles for poverty alleviation — does relate to the contract's subject under the broad lifecycle reading of article 81 of the 2016 Public Procurement Act.
What happened?
The municipality of Dilbeek tendered a four-year textile waste collection contract estimated at €450,000, reserved for social inclusion enterprises (article 15). Notable feature: the municipality pays nothing — the contractor is 'compensated' through the right to dispose of the collected textiles. The specifications used four 25-point award criteria: action plan, material aid, external communication, and processing of collected textile waste. The 'material aid' criterion required tenderers to describe how they would make collected textiles available for poverty alleviation within the EU. Two offers came in: vzw Televil and a temporary commercial partnership Recutex-Victrans. The partnership submitted no substantive response on 'material aid' — instead arguing the criterion was unlawful. Result: 0/25 on that criterion vs. 20/25 for Televil. Final scores: Televil 90, partnership 60. The contract went to Televil. The partnership challenged in extreme urgency. First ground: 'material aid' has no link to the contract's subject. Per the partnership, the criterion assesses what happens after execution, when textile is no longer waste but a product. Second ground: their score on 'processing' was too low. The Council rejects both grounds. Article 81, §3 (transposing article 67 of directive 2014/24/EU) defines link to subject very broadly — in all respects and at every lifecycle stage, including factors not part of the material core. Recital 97 reinforces this. Within this broad reading, 'material aid' can be seen as the final phase of waste processing — not post-execution. On the second ground: even with maximum recalculation, the partnership couldn't bridge the 30-point gap. Lacking interest, the second ground fails.
Why does this matter?
This ruling traces the outer limits within which authorities can attach social and environmental criteria to contracts — and those limits are wider than many tenderers (and authorities) assume. The lifecycle approach of article 81 leaves room for criteria looking beyond the literal core service, provided a reasonable link to the contract exists. For contracts with in-kind compensation, authorities have additional discretion.
The lesson
For tenderers: never challenge an award criterion's lawfulness by simply not bidding on it. That strategy cost the partnership 25 points and the case. Either challenge the criterion in time (suspension or annulment against the specifications), or submit a full offer and challenge subsidiarily. For authorities: with reserved contracts and in-kind compensation, social criteria have more room. Make the link to the contract subject explicit in the specifications — not in the award report.
Ask yourself
About to challenge an award criterion's lawfulness instead of submitting a response? Have you calculated your point risk if the Council finds the criterion lawful? A 30-point gap out of 100 cannot be bridged.
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 →