Sub-criteria that only surface at evaluation? That is allowed — but only under strict EU conditions, and the challenger must prove the breach concretely
The Council of State rejects cleaning company ACTIVA's appeal against the award of five lots of cleaning for military quarters to ISS and Cleaning Masters: the delegation of power to the colonel was legitimate, the use of sub-criteria not pre-weighted complied with EU case law, and ACTIVA showed no concrete assessment error.
What happened?
On 3 April 2020, the Minister of Defence awarded a multi-year cleaning services contract for buildings and military infrastructure in the quarters of Peutie, Berlaar, Evere, Liège and Marche-en-Famenne. Lots 1, 3, 4 and 5 went to ISS Facility Services, lot 2 to Cleaning Masters. ACTIVA — which had bid for several lots — lodged an annulment appeal on 28 May 2020. An earlier urgent-suspension claim had already been rejected by judgment no. 247.802 of 16 June 2020. Four years later, on 2 October 2024, the VIth chamber ruled on the merits. ACTIVA put forward three grounds. None of them stood. The first ground: incompetence of the author of the specifications. ACTIVA questioned who had approved the specifications — Colonel De Tender or Major-General Roelandts — and the validity of the delegation. In its replies it shifted the grievance to an alleged sub-delegation (forbidden by the ministerial decree of 31 July 2018) and to the absence of prior consultation of the legislation section of the Council of State. The Council dismantled that ground systematically. The ministerial decree of 31 July 2018 itself delegates the power to approve tender documents to the head of the Division Marchés publics and, in his absence, to the head of the section management & support — Colonel De Tender. So there was no sub-delegation, only a statutorily provided substitution. Moreover, the 2018 decree has no regulatory character (article 3 of the laws on the Council of State), so prior consultation of the legislation section was not mandatory. Not founded. The second ground was the most interesting. ACTIVA argued that the contracting authority had used sub-sub-(sub-)criteria and weightings not announced in advance — contrary to the ECJ judgments ATI EAC (C-331/04) and Lianakis (C-532/06). The Council recalled the three cumulative conditions from that case law: (i) they must not change the criteria in the specifications, (ii) they must not contain elements which, had they been known in advance, could have affected the preparation of offers, and (iii) they must not be chosen with a discriminatory effect against a bidder. ACTIVA contested those conditions by submitting simulations in which alternative weightings would have given it a higher score. But the Council observed that its simulations mainly increased the weight of precisely those sub-criteria on which the contracting authority had already scored its offer positively — counter-evidence of a discriminatory effect, not evidence of one. For the 'formation' criterion (30 points) too, the internal weighting between frequency, duration and content (10-10-10) was entirely neutral. So ACTIVA did not establish that at least one of the three conditions had been breached. Not founded. The third ground — concrete assessment errors in the evaluation of ACTIVA's offer — was refuted point by point. Why did ISS get 2/2 for 'client/personnel communication means' and ACTIVA 1.5/2? Because ISS's Portal — according to its offer — allows 'direct access to all info', while ACTIVA's VIP intranet was more limited. Why did ACTIVA get 17/30 on 'formation'? Because the confidential technical evaluation report shows that the assessors had specifically considered each element (frequency, duration, content). No manifest assessment error. Not founded. The appeal is dismissed. ACTIVA pays €440 in roll fees and contributions; the interveners €150 each for their intervention.
Why does this matter?
Three lessons emerge from this ruling. One: competence grievances about who signed the specifications rarely succeed, provided the contracting authority has a clear delegation decree and the signatory is statutorily competent. Anyone considering such a ground must concretely show a sub-delegation is at play — not merely express suspicions. Two: sub-sub-criteria and weightings can be introduced later, but only under strict conditions from EU case law (ATI EAC, Lianakis). Simulations in which you assign higher points to your own strengths do not help — they must show that the chosen weighting concretely discriminates. Three: challenging concrete points-per-criterion before the Council of State is technical work — you must show that the contracting authority assessed manifestly unreasonably. A difference of 0.5 points for 'table + monthly meetings' versus 'Portal direct access' is not a manifest error — it is an appreciation.
The lesson
As a bidder challenging an award decision: focus on concrete elements that the contracting authority cannot justify in its own administrative file. General grievances about delegation structure or about EU case law on sub-criteria have a high evidentiary bar. As a contracting authority: keep a clear delegation decree, document per sub-sub-criterion how the confidential evaluation report underpins the points awarded, and be sparing with sub-weightings not in the specifications — they are allowed but will be put under the microscope.
Ask yourself
As a contracting authority, have you left a written trail in the technical evaluation report for each sub-criterion — including argumentation for points that differ between bidders? And as a bidder: have you prepared simulations showing that the chosen weighting specifically disadvantages your offer compared to elements where you objectively score stronger — or do your simulations mainly show your own strengths?
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 →