Suspension of audiovisual framework agreement: company references are a selection criterion, not an award criterion
The Council of State suspends the award of a framework agreement for audiovisual services because the sub-award criterion 'References' assesses the tenderer's experience as a company rather than the quality of personnel deployed for execution, making it essentially a selection criterion that may not be used as an award criterion.
What happened?
The University of Hasselt tendered a service contract for a framework agreement for audiovisual and decorative event support via a simplified negotiated procedure with prior publication. The maximum contract value was €209,000 excl. VAT over 48 months. The specification contained two award criteria: Price (40 points) and Service delivery (60 points). Service delivery was divided into three sub-criteria: Service delivery (20 points — creative approach to event preparation and execution), Back-office organisation (20 points — organisational chart and structure), and References (20 points — list of at least three concrete realisations and/or contacts). Notably, the selection criteria for technical and professional capacity were stated as 'Not applicable'. Two tenderers submitted offers: M. BV scored 90% and NV N. scored 78.55%. For the References sub-criterion, M. received 20/20 (excellent) for providing detailed descriptions per event, while N. received 15/20 (good) for a more summary description. The University awarded the contract to M. on 23 September 2024. NV N. applied for suspension under extreme urgency. On admissibility, the University argued that NV N. should have raised its objection in advance under specification clause I.15, which required written notification within seven days of receiving the specification. The Council rejected this defence under the Labonorm (General Assembly ruling 152.173 of 2 December 2005): a tenderer is not obliged to challenge specification clauses in advance and may invoke their illegality against the award decision. On the merits, the Council held that the References sub-criterion assessed the tenderer's experience without further specification — it requested a list of completed contracts, not qualifications or experience of personnel to be deployed. The criterion assessed the suitability of the undertaking, not the intrinsic value of the tender. Referring to the Ambisig ruling (CJEU C-601/13), the Council noted that team competence and experience may be an award criterion when team quality is an intrinsic characteristic of the tender, but the contracting authority must make this explicit in the criterion's description. The fact that the chosen tenderer had interpreted the criterion that way and received a higher score for it was irrelevant. The Council ordered suspension.
Why does this matter?
This ruling draws a sharp line between selection and award criteria regarding experience and references. References assessing the tenderer's experience as a company — previously executed contracts without specification of executing personnel — are selection criteria. Only the competence and experience of personnel actually deployed for execution may be an award criterion (Article 81 §2(3)(b)), and the specification must explicitly describe the criterion as such. The Labonorm is reaffirmed: a contractual specification clause requiring advance notification of objections does not deprive tenderers of their right to invoke illegality before the Council of State.
The lesson
Use references of previously executed contracts exclusively as a selection criterion, not an award criterion. If you want to include experience in the award, formulate the criterion explicitly as the competence and experience of the concrete team assigned to execution, and request CVs or qualifications of key personnel — not a list of company references. A specification clause requiring advance notification of illegalities does not affect the right to invoke them against the award decision.
Ask yourself
Does your specification clearly distinguish between selection criteria (suitability of the undertaking) and award criteria (intrinsic value of the tender)? When using experience as an award criterion, do you assess the concrete team or the company as a whole? Do you request personnel CVs or a list of company references? Does your specification contain a clause requiring advance notification of objections — and are you aware it does not limit the right of appeal?
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 →