A 4 out of 10 that contradicts itself: the Council of State suspends the ‘State aid’ lot of the Walloon legal-services framework agreement
The Walloon Region gave the firm Lexing Belgium 4 out of 10 on the sub-award criterion ‘relevance and added value of the proposed team’ for lot 18 ‘State aid and SGEI’ of its framework agreement for legal services, but because that same statement of reasons simultaneously acknowledged that the proposed lawyer teaches a university course on the economic aspects of competition law and is an active member of a research centre the Region itself called a positive factor — and because it said nothing about the training he gives to French civil servants — the Council of State suspended the award under extreme urgency on 12 January 2023 for manifest error of assessment.
What happened?
By a contract notice of 18 October 2021, the Walloon Region launched a procurement procedure for a framework agreement establishing lists of lawyers on which the Walloon Government, its departments and certain bodies dependent on the Region could draw. Special specification no. S1.03.03-21-1801 divided the contract into eighteen lots. Lot 18 concerned ‘State aid and SGEI’ — articles 106, 107 and 108 TFEU, from the lawfulness of support mechanisms through pre-notifications and notifications to the European Commission to audits and the recovery of aid — and point C.6 of the specification provided that this lot would be awarded to a maximum of four contractors. The award criteria were price (35 % for the hourly rate offered, 5 % for the mandatory option) and ‘mastery’ of the subject matter, divided into four sub-criteria to be set out by the tenderer in a note of approximately seven pages in Century Gothic 10.5: the challenges and specific features of the lot (20 %), the particularities of a public-sector client (15 %), the way the lawyer intends to manage contingencies, urgency and risk (15 %), and the relevance and added value of the proposed team or collaborations (10 %). On 6 December 2021 the Region received nine tenders for lot 18. By a decision of 14 October 2022, the Minister for the Civil Service, IT and Administrative Simplification, Valérie De Bue, awarded the lot to four firms: Deprevernet, CMS DeBacker, Doutrelepont and Clayton & Segura. For the contested sub-criterion the contracting authority applied a three-step scale: ‘very good’ for 10 to 8 out of 10, ‘good’ for 7 to 6, ‘unsatisfactory’ for 5 to 0. Clayton & Segura scored 10/10, CMS DeBacker 9/10, Doutrelepont and Deprevernet 8/10 each, Mr Éric Balate and Parresia Avocats 6/10 each, Lexing Belgium 4/10 and Mr Gilles Vandermeeren 0/10. The award decision was notified to Lexing by email of Friday 21 October 2022, which the firm downloaded on 26 October. On 2 November 2022 Lexing wrote to the Region asking it to withdraw the decision. When it did not, the firm lodged an application for suspension under extreme urgency and for annulment on 4 November 2022. The case, initially set down for 30 November 2022, was postponed to the hearing of 5 December 2022. Lexing challenged only the team sub-criterion, on four points. First, the Region had written that the institute of which Mr Norman Neyrinck is an active member, the Liège Competition and Innovation Institute of the ULiège, was ‘not dedicated to the subject matter of the lot’ — whereas for another tenderer, Mr Balate, it had accepted precisely that economic law covers State aid because competition law is a branch of economic law. Second, Lexing’s team was dismissed as having ‘complementary and varied profiles’, even though the tender expressly named Mr Jean-François Henrotte and Mr Nicolas Duchatelet as active in ‘European law, subsidies, State aid and public procurement’. Third, the decision took no account, favourable or unfavourable, of the annual training Mr Neyrinck gives at the College of Europe to officials of the French Ministry of the Economy and Finance: it simply was not mentioned. Fourth, the decision stated that Mr Neyrinck did not demonstrate his expertise, whereas the tender put forward three concrete examples. The Region defended itself point by point. On the first point, however, it wrote in its note of observations that Mr Neyrinck’s status as an active member of the Liège Competition and Innovation Institute was indeed ‘a positive or favourable factor’ in the assessment of the tender, and that it was precisely for that reason that Lexing had obtained points for the criterion. The Region added that if there was a problem anywhere, it lay not with the four contractors but with Mr Balate’s 6/10. The Council of State first recalled that the contracting authority enjoys a broad discretion when assessing tenders and that it can sanction only the manifest error of assessment: the error no other authority placed in the same circumstances would have made. It then dissected the reasoning behind the 4/10. Neutral or positive were: that Mr Neyrinck teaches a course on the economic aspects of competition law, that he can rely on a team with complementary and varied profiles, and that the firm’s administrative structure is trilingual. On the Region’s own wording, membership of the Liège Competition and Innovation Institute had to be added to that list. That left a single negatively assessed element: that Mr Neyrinck does not demonstrate his expertise and practical experience in State aid and merely mentions his interest and ‘heightened activism’ without citing a single example. That single reproach did not hold. It is, the Council held, contradicted by the finding that Mr Neyrinck teaches a course on the economic aspects of competition law — which neither party disputed includes the State aid problem — and by the finding that he is an active member of a research centre the Region itself described as a favourable factor. Moreover, the assessment took no account of the training he gives at the College of Europe to French officials, an element passed over in silence in the contested act. Following an examination in extreme urgency, the Council held that these contradictions and this omission reveal a manifest error of assessment, and that the ‘unsatisfactory’ score of 4/10 has its source there — even though the tender describes the non-academic professional experience only briefly, since practical experience in any event includes academic experience. The plea was serious. Weighing the interests, the Region identified no adverse consequences of a suspension that would outweigh its advantages, and the Council saw none either. On 12 January 2023 the President of the Sixth Chamber, sitting in interim relief proceedings, ordered the suspension of the execution of the award of lot 18, with immediate effect of the judgment. Lexing’s tender (exhibit 3 to the application) and the tenders of the other tenderers (exhibits A to I of the administrative file) remained confidential at that stage. The Council did not yet rule on costs and the procedural indemnity: those were reserved.
Why does this matter?
The judgment shows how narrow the passage is through which an unsuccessful tenderer can attack a contracting authority’s scores — and how an authority can open that passage itself. The Council of State does not re-evaluate tenders: it accepts the broad discretion and looks only for the error no other authority would have made. But whoever gives reasons for a score must make those reasons internally consistent. Here the Council starts not from what Lexing was worth, but from what the Region itself wrote: it breaks the statement of reasons down into positively, neutrally and negatively assessed elements, and finds that after that exercise a single negative element remains, one that collides head-on with two other sentences in the same text. A self-contradictory statement of reasons is then not a formal defect to be repaired afterwards, but the very proof of the manifest error of assessment. Equally striking is where that contradiction was finally locked in: in the Region’s own note of observations. By clarifying in the proceedings that membership of the research centre was ‘a positive or favourable factor’, the Region closed off its last way out — it could no longer invoke that passage as a negative ground for the 4/10. Defending a case before the Council of State is not a free exercise: every clarification is laid alongside the contested act. The judgment also contains two substantive pointers that reach beyond this file. Silently passing over an element of a tender is as fatal as weighing it wrongly: the College of Europe training was not assessed badly, it was not assessed at all, and precisely that silence counts. And where a specification asks for ‘expertise and practical experience’, academic experience may not be placed outside practical experience — the Council expressly holds that practical experience includes academic experience. Finally, the case shows that a single lot of a multi-contractor framework agreement can fall on its own: the other seventeen lots were untouched, but for lot 18 the Walloon Region’s list of appointable lawyers came to a standstill.
The lesson
If you are a tenderer and receive a low score on a qualitative sub-criterion, place the reasons for your own score alongside those given for the others and look for contradiction within one and the same text. Ask yourself which element is actually assessed negatively: if the authority treats the rest as neutral or positive and the one remaining reproach collides with another sentence in the same statement of reasons, you have a serious plea. Look also at what is not there — an element of your tender that simply goes unmentioned is a foothold in itself. And do not wait: Lexing wrote asking for withdrawal within two weeks of notification and filed its extreme-urgency application two days later. But the judgment also holds a lesson for the tenderer building the file. The Council upheld the plea, not the criticism that the tender was sufficient: the Region showed without contradiction that the competitors described each team member individually, with education, practice areas and concrete recent files, whereas Lexing largely presented its team with a photograph, a job title and a short list of practice areas. Anyone who wants to win a 10 % team criterion must document in concrete terms every profile assigned to the contract — and back up claims such as ‘heightened interest’ with examples. If you are a contracting authority, the lesson is above all editorial. Write the assessment of each sub-criterion as one coherent whole: mention every relevant element of the tender, including those you give little weight, and then say why. Never formulate a negative conclusion that contradicts a positive finding two sentences above. And bear in mind that your note of observations becomes part of the file: what you describe there as a ‘positive factor’ can no longer serve as a ground for a low score.
Ask yourself
Have you broken the reasons for your score down into positively, neutrally and negatively assessed elements — and does one reproach then remain that contradicts another sentence in the same text? Have you checked which elements of your tender do not appear in the assessment at all, as the College of Europe training did not here? Do you realise that what the authority describes in its note of observations as a ‘positive factor’ thereafter bars it from invoking that factor as a negative ground? And as an authority: can your assessment of a team criterion be laid word for word alongside that of every other tenderer without a contradiction or an omission surfacing? As a tenderer, do you document each proposed team member with education, practice areas and concrete files rather than with a photograph and a job title?
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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 →