An award criterion is not there to check who meets the spec, but to identify who meets it BEST
The Walloon water utility (SWDE) awarded an 11.6 million euro sludge-treatment contract to SEDE/ATOX based on reasoning like 'sufficient qualified staff' and 'clearly identified resources' — the Council of State suspends because such formulas verify whether bidders meet requirements rather than rank who meets them best.
What happened?
The Walloon water utility (SWDE) ran a negotiated procedure with prior call for competition for the treatment and disposal of sludge from its water treatment plants, split into four geographical lots. Lot C — Liège production area, 8 years — was the highest-value lot. Three bidders were selected: KURSTJENS (NL), LAMESCH (LU) and the consortium SEDE/ATOX (FR). Award criteria: price (60%), human and material resources (30%), sludge valorisation and traceability (10%). On 1 March 2019 the SWDE board awarded lot C to SEDE/ATOX for 11,631,200 EUR excl. VAT — 32% below the estimate. Final ranking: SEDE/ATOX 100%, LAMESCH 88.99%, KURSTJENS 86.74%. Kurstjens received 29/30 on criterion 2 (instead of 30/30) and 9/10 on criterion 3 (instead of 10/10) — one point less each time than its two competitors. Kurstjens filed an extreme-urgency suspension and prevailed on one ground: the duty to give reasons. SWDE first ran a procedural defence: 'even with two extra points, Kurstjens stays third' — therefore no interest. The Council of State rejects that defence sharply: the criticism also targets the reasoning behind the competitors' scores, not just Kurstjens's own. Then the substantive core: the SWDE reasoning on criteria 2 and 3 states that all three bidders offered 'qualified staff in sufficient numbers', that resources were 'clearly identified' and that planning was 'clearly detailed' per site. The Council notes: those are formal qualities — not comparative assessments. The 29-vs-30 gap rests on the sentence 'Kurstjens's offer is less detailed on this point', without explaining what makes it less detailed or what makes the others stronger. President Imre Kovalovszky delivers the key sentence: 'the purpose of an award criterion is not to determine whether bidders meet the requirements it sets out, but to identify the bidder that meets them best'. An award criterion that only validates instead of differentiating fails the duty to give reasons prima facie. Lot C is suspended; the rest of the application is dismissed.
Why does this matter?
Many contracting authorities draft award reasoning as if it were selection reasoning: 'meets the requirements', 'sufficiently', 'clearly described'. Those are linguistic tics that only test minimum acceptability — which is what selection does. An award criterion must rank bidders, so the reasoning must show WHY offer X earns more points than offer Y on the specific aspects of the criterion. For bidders, this is a ground to challenge award decisions even when their position cannot convincingly be reversed: as long as the reasoning behind the others' scores is also stereotyped, you have an interest in the challenge. That is an important exception to the general rule that complaining third parties must show they should have won the contract.
The lesson
When you motivate as a contracting authority, do a second reading and strike every sentence that only says 'the bidder meets the requirement'. Keep only the sentences that say 'bidder X delivers more/better Y than bidder Z, because...'. If the reasoning at each criterion essentially repeats the same words for the three offers ('they all offer qualified staff'), that signals the criterion does not differentiate and so does not motivate. For bidders: don't only check the reasoning behind your lost points, also check the competitors' — stereotyped reasoning there opens legal interest for your challenge.
Ask yourself
For every award criterion you motivate as an authority: read the three blocks side by side. If you can swap two blocks without the reasoning breaking down — you are not motivating, you are duplicating. For bidders: in my notification letter, do I read about MY competitors only formulas like 'sufficient', 'clear', 'planned' — can I tell from that exactly why their offer outperforms mine?
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 →