An award criterion pointing to a specifications article that doesn't exist, plus headline scores with no breakdown — Villers-la-Ville loses its cleaning tender on a misapplied 30-point criterion
The Council of State suspends the cleaning contract awarded by Villers-la-Ville because the third award criterion ('management and emergency interventions', 30 points) refers to an article 3.1 of the specifications that simply doesn't exist — and the authority gives identical 25/30 scores to bids with manifestly different quality.
What happened?
On 29 July 2019 the college of Villers-la-Ville approved specifications 19/N.B.C. 283.4 for cleaning of municipal buildings for fiscal years 2020-2021-2022. The contract was split into two lots: lot 1 cleaning buildings, lot 2 windows. The notice was published in the EU Official Journal on 21 August 2019. The specifications had three award criteria: price (20 points), annual service hours (50 points) and 'management and emergency intervention measures' (30 points). For the third criterion bidders had to submit a 4-page A4 note 'for each lot of buildings' explaining the measures they would take to perform all management tasks 'described in the technical clauses of the special specifications, article 3.1 "Management of personnel and mobile personnel"'. That article 3.1 did not exist in the technical clauses. Six bidders responded. Lot 1 totals incl. VAT: Köse Cleaning €197,165.27 — CSS Belgique €221,603.00 — Eden Services €238,941.95 — Cleaning Masters €268,757.41 — Activa €270,167.43 — Laurenty €339,127.30. On 22 November 2019 the college awarded lot 1 to CSS Belgique and lot 2 to Cleaning Masters. Final lot 1 scores: CSS Belgique 88.04 — Laurenty 86.63 — Cleaning Masters 83.99. Laurenty filed a UDN suspension on 7 December 2019. The challenge to the 29 July 2019 specifications-approval decision was inadmissible: the fifteen-day deadline of article 23, § 3 of the Act of 17 June 2013 had passed. But the irregularities of the specifications could still be raised against the award decision. The Council zeroed in on the third award criterion. Three problems stacked up. First: the criterion referred to an article 3.1 'Management of personnel and mobile personnel' of the technical clauses — an article that simply did not exist. Bidders had no way of knowing which tasks were actually being assessed. Second: the authority gave a single global numerical score per bidder, without explaining how that score followed from the three sub-criteria (number of management staff, sector allocation, emergency interventions). Third: the assessment was incoherent. CSS Belgique scored 29/30 partly because its mobile app was praised under the sub-criterion 'number of management staff' — even though an app has nothing to do with staff numbers. Eden Services was assessed on 'complaint management' and 'absenteeism' under the same sub-criterion. Köse Cleaning got 25/30 even though it expressly offered 'pas de précision' on the 'sector allocation' sub-criterion — the same score as Laurenty and Cleaning Masters who proposed structured allocations. The Council held that a contracting authority indeed has wide discretion in award criteria, but the method may not be arbitrary or incoherent and must apply equally to all bids. Global scoring without a reasoned link to the sub-criteria, combined with evaluations placed under wrong sub-criteria, and identical scores for bids of manifestly different quality, breached the equal treatment principle. The suspension was granted. A notable coda: between the UDN filing (7 December 2019) and the hearing (7 January 2020), Villers-la-Ville decided on 13 December 2019 to award a one-month emergency cleaning contract to CSS Belgique by negotiated procedure without prior publication under article 42, § 1, 1° of the Act of 17 June 2016. Official ground: Laurenty's running contract expired on 31 December 2019 and the appeal blocked the award to CSS Belgique. Laurenty saw this as a circumvention of the legal protection system. But the Council ruled such claims — a 'declaration of absence of effects' under article 17, 2° of the Act of 17 June 2013 — fall exclusively under the ordinary courts, not the Council of State.
Why does this matter?
Many specification drafters write the third award criterion as a 'qualitative' criterion with sub-criteria — and assume a points table is enough for justification. This judgment hardens three principles: (1) an award criterion cannot refer to an article that doesn't exist — that is a fatal ambiguity; (2) a global score must be traceable to the announced sub-criteria; and (3) the substance of the evaluation must actually belong under the right sub-criterion — you don't assess a mobile app under 'number of personnel'. For bidders this is a UDN drafting playbook: compare awarded scores with the announced sub-criteria, and look for bids that received the same score despite plainly different sub-criterion performance.
The lesson
If you are the contracting authority: have a second pair of eyes review the entire specifications for cross-references — does award criterion 3 actually point to an existing article? And motivate scores by sub-criterion, not just globally. If you are a bidder: crack open the motivation on three fronts. One, does the criterion's reference match the specifications text? Two, can I reconstruct sub-criterion by sub-criterion why the winner scored higher? Three, do bids with plainly different quality receive identical scores? A single positive answer often gives a serious ground.
Ask yourself
In the award decision you see that a competitor whose bid said 'pas de précision' on one sub-criterion (or was clearly less detailed) still received the same score as your structured proposal. That alone is enough for a serious ground — get the motivation and dig into the sub-criteria.
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 →