Giving everyone a perfect score is not an evaluation — and a tennis court contract falls under sub-category G4, not G
The Council of State suspends the award of a contract for two clay tennis courts in Herzele to Sportsbuild, because the municipality de facto neutralised two of its three award criteria by giving every bidder the maximum score, and because the contract fell under sub-category G4 — meaning that classification of the contractor was required, which the winner did not have.
What happened?
On 20 December 2017 the Herzele municipal council decided to launch a negotiated procedure without prior publication for the construction of two clay tennis courts, alongside existing courts — including the demolition of a beach volleyball court and a pétanque court. Estimated value: €70,247.93 (excl. VAT). The choice of procedure was justified by article 42 § 1, 1° a of the 2016 Act (limit of €135,000 not reached). Specifications 2017/023 expressly stated that no contractor classification was required, and used three award criteria (price, technical value, execution time). Four firms were invited. Three offers were submitted: Scheerlinck Sport NV, Lesuco NV, and the sole trader 'Sportsbuild'. The award report of 8 January 2018 selected all three bidders and considered all three offers regular. On the three award criteria something striking then happened: for price the rule of three was correctly applied, but for the other two criteria each bidder received the maximum score. The reasoning was invariably 'Correct technical execution' and 'Execution time allows the works to be completed by 6 April 2018'. On 10 January 2018 the executive awarded the contract to Sportsbuild for €70,897.53 (incl. VAT) — €58,593 (excl.). Scheerlinck Sport raised two pleas, both held to be serious: **First plea: award criteria neutralised.** No substantive assessment had taken place for 'technical value' and 'execution time'. By giving everyone the maximum score, in reality only price was determinative. Moreover, the assessment method for these two criteria had not been established before the opening — the specifications never mentioned that 'works completable by 6 April 2018' was the benchmark. The municipality defended itself post factum: all bidders met the 6 April deadline (the date the tennis club needed availability), so 'further reasoning was unnecessary'. As to technical value, all firms had filled in the measurement and the chief engineer had confirmed that execution would be correct. The Council of State holds that finding that an offer involves 'correct technical execution' and respects the time limit is part of the regularity examination — not the assessment against award criteria. A criteria assessment requires a meaningful comparison, with strengths and weaknesses of every offer. 'Nothing of the kind appears to have happened here.' The post factum reasoning is rejected. Furthermore: under the patere legem principle, a contracting authority cannot simply neutralise two award criteria — if it wanted only price as the criterion, it should have written so in the specifications. The assessment method was also not fixed before opening — the Council references CJEU 14 July 2016, C-6/15 (TNS Dimarso) and Council of State no. 239,937 of 23 November 2017. **Second plea: wrong contractor classification category.** The municipality classified the works in category G 'General contracting earthworks' (threshold €75,000 — not exceeded, so no classification required). But the works essentially consisted in laying out tennis courts in crushed brick — not complex earthworks modifying ground relief. The ministerial decree of 27/09/1991 expressly defines sub-category G4 'Special coverings for sports fields' as 'protection and covering layers for sports fields, including artificial grass and brick powder, the construction of tennis courts and athletics tracks'. A clay tennis court therefore prima facie falls under G4. For sub-categories the threshold is not €75,000 but €50,000 (art. 2 of the Royal Decree of 26/09/1991). The estimated value (€70,247.93) and even the award sum (€58,593) exceed that threshold. Classification was therefore required, and the FPS Economy database showed that Sportsbuild held no classification at all. The contracting authority should have checked that — nothing of the kind appears in the file. Both pleas serious. Suspension granted.
Why does this matter?
Two errors converge in this file and reinforce each other. One concerns evaluation, the other classification — but both have the same effect: the entire decision-making process never really took place as the law requires. As to award criteria: in smaller contracts — especially negotiated procedures without publication — there is often a tendency to keep the evaluation 'practical'. Price is measurable, so points are correctly distributed. For the other criteria, all bidders simply receive the maximum: 'everybody is technically fine, so 30/30 for all'. That looks reasonable, but legally it is an award on price alone — even though the specifications announced two other criteria. For competitors, this means: a contracting authority that gives 'everyone ten out of ten' on quality criteria hands you a near-certain suspension argument. Request the award report and check the reasoning per bidder per criterion. The second error — the classification category — is a classic pitfall for small authorities procuring on their own. The threshold differs depending on whether the works fall in a main category or a sub-category: €75,000 for categories, €50,000 for sub-categories. Tennis courts, football pitches, athletics tracks fall under sub-category G4. Even with an estimate below €75,000, classification is therefore already required for such works as soon as the value exceeds €50,000. Similar pitfalls exist for landscaping (G3), road markings (C3), floor coverings (D29) — each with a €50,000 threshold. For TenderWolf users this works both ways. Authorities must, for every works contract, expressly motivate which category or sub-category the works fall into and apply the right threshold — not just look at the estimate. Contractors competing for small contracts can easily check the classification status of competitors in the FPS Economy database; if a competitor lacks classification for an awarded contract, that is in many cases a ground for suspension.
The lesson
For every award report: for every award criterion in your specifications, motivate per bidder what the offer concretely delivers and how it compares to the other offers — strengths and weaknesses. Never give all bidders the maximum score on a quality criterion with an empty one-line justification. Do you actually want to award only on price? Adjust your specifications and use price as the sole award criterion. Furthermore: fix the evaluation method (which performance gets which points) before opening the offers. And for works contracts: classify the works in the correct category or sub-category, and apply the correct threshold (€75,000 for categories, €50,000 for sub-categories). For tennis courts, athletics tracks and sports field surfaces: sub-category G4, threshold €50,000.
Ask yourself
You lose a works contract under €100,000 on an award report in which all three bidders receive the maximum score on the non-price criteria, with a one-line motivation identical for everyone ('Correct execution', 'Time achievable'). Do you have a suspension argument? Yes: there has been no comparative assessment against the award criteria — the authority has de facto neutralised the criteria. Bonus question: is the winner classified? Check the FPS Economy database and verify whether the works (tennis courts, athletics tracks, football pitches, artificial grass) fall under sub-category G4. Threshold there: €50,000, not €75,000.
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 →