A social award criterion without a link to the subject matter and without a control mechanism: doubly unlawful
The Council of State annuls a road-marking contract awarded by the city of Enghien because the social-employment award criterion was not linked to the subject matter of the contract and was insufficiently precise to allow control — the winner offered 700 hours of social employment on a contract whose total work volume was estimated at barely 480 person-hours.
What happened?
In 2022 the city of Enghien tendered road-marking works through a direct negotiated procedure with prior publication. The specifications provided for an estimated maximum of 300,000 euros for new markings plus separate maintenance/repair orders until 31 December 2023. Among the award criteria — alongside price and technical merit — was a third criterion: 'performance in socio-professional integration of vulnerable groups', assessed on training/integration hours and supervision ratio. On 29 December 2022 the contract was awarded to the consortium TAROS-TRBA for a maximum of 299,999.87 euros incl. VAT for new markings plus 15,000 euros for maintenance. TAROS-TRBA had offered 700 hours of integration through hiring with a 1:1 supervision ratio. Phil Sign Marking, which had only proposed 160 training and 40 integration hours, challenged the award on 25 January 2023. The Council suspended the decision (judgment 255,878 of 22 February 2023); the city failed to request continuation within the 30-day deadline (article 17, §6 of the Coordinated Laws on the Council of State), triggering the abbreviated procedure. Three core findings: (1) the social criterion had no demonstrable link with the subject of the contract (road marking), violating article 81 §3 Public Procurement Act 2016; (2) the criterion was insufficiently precise — no reference volume meant bidders could not calibrate their offers; (3) no control mechanism was foreseen. The Council also rejected the city's plea that participation in the tender amounted to unconditional acceptance of all specifications: a contracting authority cannot include clauses limiting access to court a priori. Annulment confirmed.
Why does this matter?
Social and environmental clauses are politically popular but technically delicate. For contracting authorities: a social aspect can only be an award criterion when (a) it is linked to the subject matter — not every contract qualifies, especially purely technical execution contracts — and (b) the criterion is sufficiently precise with a reference volume and a control mechanism. For bidders: this is a double lever — challenge the criterion's link to the subject and the absence of real verification of the offered numbers. Crucially, you don't have to challenge a flawed specification clause upfront — clauses requiring 'unconditional acceptance' or pre-emptive challenges cannot block a later annulment claim.
The lesson
As contracting authority planning a social clause: ask first whether this should be an award criterion (link to subject required) or rather an execution condition (no link required). For pure execution contracts without socio-economic components, an award criterion rarely holds. If you do want one, set a reference volume against which bidders can calibrate, and provide control. As bidder: when you see a social or environmental criterion, ask three questions. Is it linked to the subject? Is there a reference volume so the absolute numbers are evaluable? Is there execution control? Three 'no' answers = strong ground for challenge.
Ask yourself
Do you see a social or environmental criterion in absolute numbers (e.g. 'X hours of training') without a reference volume for the contract (estimated person-hours, turnover, kg)? Does the specification contain no control procedure for the offered figures? Does the criterion appear unrelated to the actual performance (e.g. road marking, office supplies)? Three 'yes' answers — the criterion is prima facie unlawful.
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 →