Suspension under extreme urgency of award of architectural services contract for CHR Citadelle Liège — evaluation method using insufficiently defined concepts of 'added value', 'neutral' and 'defect' leads to incoherent and unpredictable assessment violating equal treatment
The Council of State suspended under extreme urgency the award by CHR de la Citadelle of a contract for architectural services (facade and technical network reconditioning, €9.7 million excl. VAT) to ASSAR-BAHG-GREISCH, because the second limb of the second ground was serious: the ex post defined evaluation method, which assessed tenders through a system of 'added values', 'defects' and 'neutrals' without sufficiently defining these concepts, prima facie led to incoherent assessments that could not be explained by the specifications, failing to provide the required level of precision to ensure award to the most economically advantageous tender.
What happened?
CHR de la Citadelle in Liège tendered through an open procedure with European publication a service contract for the design team mission for reconditioning the hospital's facades and technical networks, fitting out three care units, and a framework agreement for commissioning services. Published on 18 March 2024, the tender attracted six offers opened on 9 July 2024. The ranking was: ASSAR-BAHG-GREISCH first (90.39/100), MODULO-UMAN-LEMAIRE second (89.33), ARCADIS-AW ARCHITECTES third (85.28), ACURA (PHD-DETOO) fourth (78.4), SM CITA DESIGN fifth (67), SAMYN & Partners sixth (62.61). On 29 November 2024, the Executive Board awarded the contract to ASSAR-BAHG-GREISCH for €9,696,963 excl. VAT plus a framework agreement for commissioning up to €500,000 excl. VAT. The specifications provided six award criteria: price (30 points), global perception of technical network reconditioning (28 points, six sub-criteria), global perception of network and facade reconditioning (22 points, four sub-criteria), team organisation (8 points), work planning (6 points), and budget management (6 points). For qualitative criteria, a rating scale applied: Excellent = 100%, Very good = 80%, Satisfactory = 60%, Insufficient = 40%, Clearly insufficient = 20%. The applicants raised a second ground in two limbs. The first limb concerned alleged ex post sub-sub-criteria: elements like 'priority to water network', 'motivation of chosen architecture', 'installation marking', 'independence of commissioning team', and 'quantification of achievable results' that were not announced in the specifications. The Council held these were permissible assessment elements (not sub-criteria) and found this limb not serious. The second limb concerned the evaluation method itself. The contracting authority had assessed offers by categorising aspects as 'added value' (positive), 'defect' (negative) or 'neutral', then tallying these to determine ratings. The Council found that neither the decision nor the analysis report defined these concepts. The application of the method showed prima facie inconsistencies: the same type of omission in tenders was sometimes assessed negatively and sometimes neutrally, without express justification. Concrete examples: for sub-criterion 2.1, the applicants' failure to mention water network priority was assessed negatively, while for sub-criterion 3.1, the successful tenderer's failure to mention water consumption reduction strategy was assessed neutrally. The Council concluded the method lacked the required precision to ensure award to the most economically advantageous tender and permitted incoherent assessments incompatible with equal treatment. The suspension was ordered. The application against the implicit refusal decision was inadmissible, as the findings did not establish that the authority had no option but to award to the applicants. Costs were awarded against the respondent (€770 procedural indemnity to applicants).
Why does this matter?
This ruling clarifies the distinction between sub-criteria (which must be announced in advance) and assessment elements (which the authority may use to guide qualitative evaluation without prior announcement, provided they do not distort the announced criteria). However, the evaluation method itself must not be arbitrary, incoherent or disproportionate: when it uses insufficiently defined concepts and their application leads to inconsistent results across tenderers, it fails the required standard of precision and violates equal treatment.
The lesson
An evaluation method categorising tender aspects as 'added value', 'defect' or 'neutral' must define these concepts sufficiently and apply them coherently. When the same type of omission leads to a negative assessment for one tenderer and a neutral one for another without express justification, the method lacks the required precision. The distinction between sub-criteria and assessment elements is accepted, but the method itself — even if not communicated in advance — must not be arbitrary, incoherent or disproportionate.
Ask yourself
As a contracting authority: does your evaluation method define its assessment categories clearly enough? Are similar omissions across different tenders assessed consistently? As a tenderer: examine the analysis report for inconsistencies — are comparable gaps in different offers treated the same way?
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 →