An award criterion that only measures what you did last year does not measure what you are offering today
The Council of State suspends a mattress recycling award because the quality criterion 'recycling percentage' (60 of 100 points) leaned entirely on a Valumat certificate of 2022 performance — and therefore not on the offer itself, ignored later developments, and used a calculation method that disregards stocks.
What happened?
IBOGEM acted as central purchasing body for five Flemish waste intercommunals and tendered a services contract for the collection and processing of mattresses at their recycling parks, divided into six lots. The specifications used two award criteria: price (40 points) and 'recycling percentage' (60 points). For the second, each bidder had to submit a Valumat certificate stating its recycling rate achieved in 2022 — measured as outgoing recycled tonnage divided by incoming compliant mattresses. A first procedure had been cancelled in December 2023 because self-reported percentages did not match reality; the second round therefore explicitly required a Valumat-validated certificate. Four firms bid. Renewi scored 60/60 on the quality criterion in every lot — the highest certified 2022 rate. Matras Recycling EU België scored 51.1/60 based on a Valumat certificate of 63 %, while its own mass balance showed 87.5 %. Renewi was proposed for five lots, Stuer Containerdienst for the sixth. In a striking interim step, IBOGEM itself simulated what would happen if Matras Recycling's own 74 % figure (the Valumat number plus 11 percentage points for the missing stock correction) were used: lots 4, 5 and 6 would hypothetically go to the applicant. The authority awarded anyway based on the Valumat certificate. The Council found two fundamental flaws in the criterion. First: the bidder has no influence on the percentage — it captures only its 2022 capacity, not what it offers or promises today. Innovations, new techniques, better outlets since 2022 do not count. The 'criterion' is in reality a freezing of the past. Second: the formula (outgoing recycled tonnage / incoming compliant tonnage) ignores opening and closing stocks. A bidder with a large stock of dismantled mattresses at year-end does not see it in its percentage; one who has just shipped them out gets a higher score for the same effort. The Council held that this criterion was insufficiently representative to determine the economically most advantageous tender, and suspended the award of all six lots. The authority argued that the applicant complained too late — at award, not at specification publication — but the Council referred to its own Labonorm case law and the Court of Justice's eVigilo ruling: an unlawful specification clause can still be challenged after the award.
Why does this matter?
Award criteria that merely look at past performance sit in a grey zone between selection and award. Selection asks whether the bidder is suitable; award asks what the bidder offers today. A 2022 Valumat percentage that determines 60 % of the score tilts award into disguised selection assessment. For authorities: if you want to weigh qualitative aspects, the criterion must measure something the bidder can influence in its offer. For bidders: a 'quality criterion' that leans entirely on third-party historical figures may be a ground for suspension — even at the award stage. The ruling also confirms that calculation methods that ignore stocks produce a 'fictitious percentage': bidders have an equal-treatment argument.
The lesson
If you include a quality criterion that refers to a historical performance measure (recycling rate, energy savings, on-time delivery rates...), check two things. One: can the bidder show in its offer how it performs today or tomorrow, or does the criterion freeze the past? Two: does the formula really cover what you want to measure, or does it leave out relevant parameters (stocks, time windows, units)? If either answer is unclear, move it to the selection stage or rework the proof.
Ask yourself
For an award criterion weighing more than 25 %: if the bidder cannot make any effort in its offer to improve its score — because everything depends on an external certification over a closed period — you probably have a selection criterion dressed as an award criterion. High suspension risk.
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 →