A 'pool of staff' is not a valid use of the personnel-experience award criterion — references about the bidder belong in selection, not in award
The Council of State suspends OCMW Tervuren's award to Compass Group for the meal-catering contract at WZC Zoniën because the sub-award criterion 'References' (10/100) measures the bidder's existing contracts — a selection element — and not the experience of the staff that will execute the present contract; Compass's 'pool of staff' argument hollows out the statutory exception.
What happened?
OCMW Tervuren launched a contract for meal preparation for nursing home WZC Zoniën and day-care centre De Den. Procedure: simplified negotiation with prior publication (social and specific services, Annex III of the 2016 Procurement Act). Award criteria, totalling 100 points: price (40), quality (40, split into four sub-criteria of 10 each), sustainability (10) and service & continuity (10). The four quality sub-criteria were: 'Approach to delivering quality meals' (based on qualifications of on-site staff, weekly menus, nutritional values), 'Test meal' (jury taste test), 'Qualitative added value', and 'References'. The 'References' sub-criterion read: 'The bidder provides with its offer a list of all current contracts where the bidder carries out similar activity, namely operating a kitchen in a nursing home, with the name and phone number of a contact person, start date of the contract, and the number of residents.' The scoring method was explained after a question from Sodexo: OCMW picked 5 comparable sites per bidder, called the contact person, scored each conversation out of 10 ('exclusively positive and praising' = 9, 'positive, normal, small but' = 7, 'all negative' = 4, etc.). Compass averaged 8.2/10, Sodexo 6.4/10. On 12 January 2023 an award report sets out: Compass 88.82%, Sodexo 87.15% — Compass wins by 1.67 percentage points. The contract was awarded to Compass on 23 January 2023. Sodexo filed an extreme-urgency suspension. Sodexo argues: the 'References' sub-criterion measures the general suitability of the bidder (a selection element), not the intrinsic value of the offer. The only statutory exception is Article 81 § 2 first paragraph 3° (b): staff experience may be an award criterion when the quality of that staff can significantly influence the level of performance — typically for intellectual services. But that requires looking at the staff actually performing the present contract, with contractual mechanisms ensuring that staff are not freely replaced. Here, nothing of the sort. Compass defends: yes, but a 'pool of staff' may be evaluated from which staff for this contract 'may' be drawn; experience can therefore be assessed at group level. OCMW agrees, stressing that catering quality is essential for a nursing home. The Council rejects this reasoning. The criterion measures the references of the bidder itself — as the wording of the tender documents makes clear. The staff working on the bidder's other current contracts cannot, as Compass itself admits, be deployed to this contract. The 'pool' argument hollows out the statutory exception: if you can simply refer to 'a group from which staff may theoretically be drawn', the entire distinction between selection and award criteria disappears. Moreover, the quality of the staff actually performing this contract is already assessed under the other sub-criterion 'Approach'. On top of that, the tender documents impose no quality standards on the staff themselves and no consent obligation upon replacement — two requirements from the legislative travaux préparatoires. Conclusion: 'References' may not be used as an award criterion. Since this criterion is worth 10% of the total and the gap between Compass and Sodexo is only 1.67 percentage points, this unlawfulness taints the entire award procedure. Suspension granted.
Why does this matter?
This ruling is particularly practical for two reasons. One: it reaffirms that the old rule — references belong in selection, not in award — has barely been loosened by the 2016 Act. The exception in Article 81 § 2 first paragraph 3° (b) is strict: experience can be an award criterion only if (a) it concerns the staff actually performing the present contract, (b) staff quality can significantly influence performance, and (c) there are contractual mechanisms keeping staff replacement under the authority's control. Two: the 'pool' argument — a diffusion of the exception to 'anyone in our group who may theoretically be available' — is explicitly rejected. For bid managers: if you see in a tender document a sub-award criterion that weighs the bidder's overall track record (list of comparable contracts, transcripts of calls with existing customers, turnover in comparable sectors), it is worth formally challenging it — before, not after, the award decision. For authorities: if staff quality is genuinely crucial, write an award criterion that focuses on the specific staff for this contract (CVs, qualifications, experience with this type of work), including a replacement clause requiring your consent and preserving quality. A general reference list of corporate contracts is not a valid route — not even with a 'pool' rationale. The Labonorm case law is also reaffirmed here: the fact that a bidder did not pre-challenge the tender documents does not deprive it of the right to raise the unlawfulness on the award decision.
The lesson
For a services contract where 'quality' is important and the authority uses staff-related award criteria, always check whether the tender meets the three cumulative requirements of Article 81 § 2 3° (b). One: does the tender ask for CVs and qualifications of the concrete staff who will perform this contract (not a list of corporate references or a 'pool of staff')? Two: does the authority motivate why staff quality has a significant influence on performance? Three: is there a replacement clause that prevents free substitution of the named staff without the authority's consent, and that requires the replacement to be of equivalent quality? If any of these three is missing, the criterion is vulnerable to suspension.
Ask yourself
For every staff- or experience-related sub-award criterion in a tender you analyse: has the authority asked for the CVs of the concrete people who will perform the contract? Are those people contractually bound — replaceable only with the authority's consent? Is the approach / staff for this contract already assessed elsewhere in the tender (in another sub-criterion), making the 'references' criterion either a double count or a disguised selection criterion? And do not forget: a bidder who did not pre-challenge the tender documents may still, under the Labonorm case law, raise the unlawfulness of a tender clause against the award decision.
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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 →