Kurstjens appeal against lot C (sludge Liège) SWDE award rejected: selection criteria and offer evaluation compliant
Appeal rejected: Kurstjens' annulment appeal against the award of lot C (Liège sector) of the SWDE sludge treatment and disposal contract to the joint venture SEDE/ATOX is rejected — references of similar contracts do not require sludge of the same type per lot, the evaluation method is compliant, and Kurstjens lacks interest in criticizing the awardee's offer as it fails to demonstrate it could surpass the second-ranked tenderer (Lamesch).
What happened?
SWDE launched a service contract for treatment and disposal of sludge from its water treatment stations, divided into four geographic lots (Mons, Charleroi, Liège, Namur), via negotiated procedure with prior competition (special sectors). Lot C (Liège) mainly concerns aluminum hydroxide sludge. Selection criteria required three references of similar contracts, including one of at least EUR 1,000,000 for lot C. Award criteria were price (60%), human and material resources (30%), and sludge valorization/traceability (10%). Three candidates were selected. After a first award decision suspended by the Council, lot C was re-awarded to SEDE/ATOX. Kurstjens filed an annulment appeal. The first plea challenged selection: Kurstjens argued the EUR 1,000,000 reference must specifically concern aluminum sludge. The Council rejected this: the criterion requires 'similar contracts' without distinguishing sludge type by lot. The second plea (three branches) concerned offer evaluation: the method (maximum score minus deductions) is a predictable implementation of the criteria, the broad discretion of the contracting entity was not exceeded, and Kurstjens lacks interest in criticizing SEDE/ATOX as it cannot surpass Lamesch (gap of 5.25 points).
Why does this matter?
This ruling clarifies the interpretation of qualitative selection criteria in multi-lot contracts: when specifications require references of 'similar contracts' without distinction per lot, references need not match the specific type of service of each lot but the general subject of the contract. The ruling also confirms the contracting entity's broad discretion in comparing offers and the principle that a party who fails to demonstrate it could surpass the second-ranked tenderer lacks interest in criticizing the awardee.
The lesson
As tenderer: do not read requirements into selection criteria that are not there — if specifications require references of 'similar contracts' without lot-specific distinction, they need not match the specific nature of each lot's services. As contracting entity: the evaluation method (maximum score minus deductions) is acceptable even if not pre-announced, provided it is a predictable implementation of the criteria. Clearly motivate each point deduction. As lawyer: verify the applicant's interest — criticizing the awardee's offer is futile if your client cannot demonstrate surpassing the second-ranked.
Ask yourself
As tenderer, did I correctly read the selection criteria without adding requirements not present? As contracting entity, did I keep my evaluation method predictable and clearly motivate each point deduction? As applicant, did I verify that I have interest in my critique — can I demonstrate surpassing the second-ranked tenderer?
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 →