One office outside the service area: that's not a hidden sub-criterion, it's just less accessibility
The Council of State dismisses the application of a lawyer partnership that lost the Pidpa debt-collection contract — taking into account the spread of offices within the service area is not a hidden sub-criterion but a legitimate reading of 'accessibility for customers'.
What happened?
Pidpa, the public drinking-water company for the Province of Antwerp, launched in November 2018 a framework agreement with three contractors for amicable debt collection 2019-2027, estimated at 30,000 cases per year. Negotiated procedure with prior call for competition. Award criteria: price (50%), quality of service (20%), services delivered (20%), communication and cooperation with Pidpa (10%). Eleven candidates were selected on 21 January 2019; five bids were rejected for substantial irregularity; six were taken into negotiation. After the BAFO round, on 24 May 2019 Pidpa awarded the framework to Flanderijn Incasso, Modero Bailiffs and Verhulst-Van Moerkercke-Houet. The Eykerman/De Donk partnership ranked fourth and filed an extreme-urgency suspension on 11 June 2019 with three pleas. First plea: on 'quality of service' Eykerman/De Donk scored 8/10, Flanderijn 9/10 — insufficient reasoning and manifest error. The Council: all four top bids were extensively discussed in the award report with their strengths and weaker points; the relative scores follow logically from that discussion. The contracting authority remains within its appreciation margin and the Council does not substitute its own. Second plea: on 'services delivered' Flanderijn scored 10/10 because it offered the 'most extensive package' — Eykerman/De Donk argued Pidpa counted services unrelated to the contract (such as a mediation service). Not serious: Flanderijn's extra communication channels and payment options are relevant to debt collection; the fact that the reasoning does not explicitly address every extra service does not mean those services were ignored — it likely means they did not differentiate the bids. Third plea — the heart of the case for practitioners: on 'accessibility for customers' (sub-criterion of 'quality of service'), Eykerman/De Donk scored lower than Verhulst and Modero because the latter offered multiple offices 'within the Pidpa service area', while the partnership's only office sits just outside it. The partnership argued that this is a hidden sub-criterion added post factum, in breach of patere legem quam ipse fecisti and article 53, §§1 and 2 of the 2016 Procurement Act. The Council swept this aside: the specification expressly asked the bidder to describe 'how you will be reachable for Pidpa's customers, both for questions and for payments' and which 'channels you make available'. An office within the service area is plainly relevant to that description — not a hidden criterion but 'a plus point within the overall assessment of service quality'. Whether it featured in earlier procurements is irrelevant. All three pleas dismissed, partnership ordered to pay €1,140 in costs.
Why does this matter?
For bid managers this judgment is doubly instructive. First: with qualitative criteria scored on a 0-10 scale, you cannot challenge a one-point gap as 'manifest error' as long as the award report extensively discusses each bid — the Council respects the appreciation margin. Second: a 'plus point' the authority cites to score your competitor higher is not a hidden sub-criterion, provided it falls within the official criterion. For contracting authorities this is a green flag: you may name specific plus points (geographic coverage, opening hours, languages) in your assessment, as long as your criterion is broadly worded — 'accessibility', 'flexibility' or similar — and the specification opens that door.
The lesson
If you want to challenge a 1-2 point gap, attack the reasoning, not the score: can you show the report misrepresents a fact, omits a material element, or buries something? If not — if your complaint is essentially 'we think we're better' — you will not succeed before the Council. And when drafting your bid, read carefully what the specification asks under 'accessibility' or 'quality': if you don't have offices in the service area, compensate explicitly with digital channels, extended hours or a nearby physical alternative — and argue it actively.
Ask yourself
Does the specification ask you to describe your 'channels', 'opening times' or 'physical presence'? Then geographic coverage is automatically a legitimate scoring element. Got a weakness there? Compensate explicitly and quantitatively in your bid — no right to surprise.
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 →