A social award criterion for painting white lines on the road: too far from the object, too vague to score
The Council of State suspends the award by the city of Enghien of a framework agreement for road marking because it included socioprofessional integration of vulnerable groups as an award criterion that lacked a real link to the object of the contract and was insufficiently precise to compare offers.
What happened?
On 27 July 2022 Enghien published a notice for 'road marking' — a framework agreement under negotiated procedure with prior publication. The specifications themselves admitted that 'the city is not in a position to determine the quantity of its needs' and only announced a 300,000 € ceiling for new markings plus 15,000 € for maintenance. Bidders had to submit unit prices only. One of the three award criteria concerned 'performances in socioprofessional integration of vulnerable groups' — concretely the number of hours of training and integration 'planned for this contract'. Three offers were received, including Phil Sign Marking's and the joint venture Taros – TRBA's. After opening, Enghien realised the difficulty and circulated a revised metering with presumed quantities; a week later it informed bidders it would not actually order those quantities given the 300,000 € cap. On 29 December the contract was awarded to Taros – TRBA for 299,999.87 €. The Council finds prima facie that the social criterion is not linked to the object of the contract — Enghien itself offered no explanation. It also finds the criterion insufficiently precise: on the day of submission, bidders could not know the volume of work involved, only the ceiling. Adjusting the criterion after opening would in any event clash with the prohibition on negotiating award criteria in negotiated procedures with prior publication. Even Taros submitted 700 hours of integration in its initial offer without knowing what volume of work was at stake.
Why does this matter?
Social and environmental criteria are to be encouraged — but as this case recalls, they must be genuinely linked to the object of the contract. Painting road marks is not a social mission. Moreover, for framework agreements or contracts with unknown volume, a criterion based on 'number of hours for this contract' is unworkable — comparison becomes impossible. This affects every authority that works with social clauses: build a mechanism around them so all bidders know exactly what they are being scored on.
The lesson
If you are considering a social award criterion, ask two questions before adopting it. (1) What value does it add to this specific contract — not to 'society in general'? Write that link out in the specifications. (2) On what quantitative basis can bidders bid comparably? If you do not know the volume, link the criterion to a percentage (% of work performed) or to a fixed reference volume stated in the specifications.
Ask yourself
For every social or environmental criterion: can I state in one sentence which quality of the performance it improves (not an external social benefit, but the performance itself)? And would a bidder, on the basis of the specifications alone, know exactly how many hours or percentages to offer?
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 →