'Number of public clients in 2016' is not an award criterion — that is history
The Council of State suspends the award of a bailiff-services contract by the City of Andenne because three sub-criteria assess the bidder's existing client portfolio — data the bidder cannot influence and that say nothing about this specific contract.
What happened?
On 27 October 2017 the council of Andenne launched a negotiated procedure without prior publication for bailiff services — lot 1 (judicial recovery, estimated at EUR 15,000/year) and lot 2 (formal findings, EUR 8,000). Three offices were invited: Vincent Bodart (Andenne), Guy More (Namur) and Paul-Henri Stephenne (Namur). A fourth office, Intermediance & Partners, had previously asked to be added to the list and been refused; its own urgency challenge against that refusal had already failed (judgment 241.890 of 25 June 2018). More & Associés filed its offer on 20 November 2017. The same day, Bodart asked for an extension — pending some certificates — and the city pushed the deadline to 7 December 2017. Bidders who had already filed could keep or replace their offer. More kept its offer. Bodart formed, on 14 November 2017, a momentary company with INTERVENTUS Liège (a much larger structure: 4 partners, 11 bailiffs, 4 candidate bailiffs, 45 staff) and filed an offer on 20 November under the name 'JV SPRL Vincent Bodart - SPRL Interventus'. After negotiations and consulting the National Chamber of Bailiffs on territorial competence, the award report was drafted on 13 July 2018: • Criterion 1 (theoretical knowledge): More 50/50, Bodart-Interventus 39.72 • Criterion 2 (practical expertise): More 34.15/50, Bodart-Interventus 50 • Criterion 3 (quality of services): More 34.81, Bodart-Interventus 39 Final score: More 79.31/100, Bodart-Interventus 85.81/100 — a gap of 6.50 points out of 100 (or 9.76 raw out of 150). On 20 July 2018 Andenne awarded the contract to the joint venture. More & Associés filed an extreme-urgency suspension. The second plea, second branch, focused on the sub-criteria within criterion 2 ('practical expertise level') — three figures from the past: • 2a: number of public clients in 2016 • 2b: number of files opened in 2016 for public clients • 2c: total amount in 2016 of sums to recover for public clients More argued these are award criteria the bidder cannot influence (the figures are a fact from the past) and have no link to the object of this contract. Andenne dismissed the 'conspiracy theory' that it favoured Bodart-Interventus, but defended the criteria on substance: 'we wanted objectifiable criteria, and the city issues 38,000 invoices a year of which 5% needs judicial recovery — that calls for scale capacity'. The Council of State does not follow the scale defence. First finding: these sub-criteria look only at the bidder's actual public-client activity in the past, not at private clients. That has, prima facie, no relevant link to the staff's ability to handle a high volume of recovery files for THIS contract. The sub-criteria 'paraissent dépourvus de pertinence' for determining the most economically advantageous offer and fall outside article 81 of the Act of 17 June 2016. Core reasoning: the bidder has no leeway on these criteria, and the criteria are foreign to the execution of the contract. Using such criteria can distort competition and breach equal treatment of bidders. Weight of the criticised sub-criteria: 30 points out of 150. Gap between parties: 9.76 points. The illegality can therefore affect the outcome — More has standing. Result: suspension of the award decision of 20 July 2018. The Council does not also suspend the implicit refusal to award to More — More has not shown it was the only suitable candidate. Balance of interests does not favour Andenne (no concrete prejudice raised). The momentary company itself is declared inadmissible for lack of legal personality; only the two SPRL partners are admitted to intervene — and bear EUR 150 in costs for the inadmissible intervention of the JV itself.
Why does this matter?
The line between qualitative selection criteria (about bidder capacity) and award criteria (about offer quality) is one of the most consistently misunderstood points in public procurement law. Contracting authorities mix the two up constantly, especially with intuitive scale measures such as 'how many clients does the firm have', 'how many files does it process', 'how big is its team'. These are selection elements — questions of whether the bidder has the 'capacity', which belong in the selection phase, often as exclusion grounds or minimum requirements. Award criteria, by contrast, must be specifically about WHAT the bidder will deliver in this contract: how the team for THIS contract is staffed, what methodology is proposed, what price is offered, what quality guarantees. The bidder must be able to influence them through its offer. For bid managers: scan every award criterion in a tender document for the question 'can I still influence this in my offer?'. If the answer is no — for instance because the figure is already fixed in your books — then it is most likely a disguised selection criterion, vulnerable to an extreme-urgency challenge. For contracting authorities: scale requirements belong in the qualitative selection (e.g. a minimum number of comparable references, minimum turnover) — not in the scoring matrix of the award criteria.
The lesson
If as a bid manager you look at an award matrix and see criteria based exclusively on the firm's historical figures (client counts, prior-year revenue, files handled), with no link to specific delivery of THIS contract: that is a disguised selection criterion that does not belong in the award matrix. You have a strong ground for suspension. If as a contracting authority you consider scale capacity important, place it in qualitative selection as a minimum requirement — not in award criteria. To value capacity in the offer score, assess the team the bidder concretely deploys for THIS contract, with CVs and task allocation.
Ask yourself
Take each award criterion and ask: could a new market entrant ever score the same as an established firm with the same offer on this criterion? If the answer is no, the criterion is most likely not a valid award criterion but a selection element.
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 →