Suspension of award of framework agreement for housing restoration – contracting authority valued prior references and certificates of the chosen tenderer under quality criterion while specifications only provided for 'means for optimal execution' as award criterion, in violation of Article 81 of the 2016 Act and transparency principle
The Council of State suspended under extreme urgency the award by SRL Sambre & Biesme of a works framework agreement (restoration of occupied and unoccupied dwellings) to SA SOTRELCO, because the contracting authority in assessing the second award criterion (quality, 30%) had valued SOTRELCO's prior references and certificates of satisfactory execution, while this information did not correspond to the 'means to be deployed for optimal execution' as described in the specifications — tenderers could not understand from the specifications that their prior achievements, which typically belong to qualitative selection, would be taken into account under this award criterion.
What happened?
SRL Sambre & Biesme (a social housing company) tendered through an open procedure a works framework agreement for restoration of occupied and unoccupied dwellings, estimated at €970,000 excl. VAT per year. Award criteria were price (70%) and quality (30%). The quality criterion required a methodological note describing the means to be deployed for optimal execution. The assessment report valued SOTRELCO's 'proven experience and convincing references' — signed certificates for identical contracts, references with certificates for substantial projects, and concrete examples of prior works. The three other tenderers scored lower partly for lacking such certificates. The contract was awarded to SOTRELCO. COMABAT challenged the award, arguing that the authority had valued information (prior references and certificates) that did not correspond to the award criterion as defined in the specifications. The Council held that these references and certificates were not related to the 'means to be deployed for optimal execution' and that tenderers could not understand from the specifications that prior achievements would be considered under this criterion. The catch-all phrase 'any other relevant element' did not authorise valuing information unrelated to means the tenderer commits to deploy. The ground was serious and suspension was ordered.
Why does this matter?
This ruling sharpens the boundary between selection criteria and award criteria. References and certificates of prior execution belong to qualitative selection, not award. An open formulation like 'any other relevant element' does not authorise valuing information outside the scope of the criterion. Article 81 §2(3)(b) permitting personnel qualifications as award criterion does not justify valuing the company's prior achievements as such.
The lesson
Do not mix selection criteria with award criteria. When the specifications assess 'means for optimal execution' as quality criterion, evaluate the proposed means, organisation and methods — not the tenderer's prior references or certificates. As a tenderer, if the authority has assessed elements belonging to selection under the award criterion, this is a serious ground for suspension.
Ask yourself
As contracting authority: have you only assessed elements falling under the award criterion as defined in the specifications? Have you valued prior references or certificates that belong to qualitative selection? As tenderer: does the quality assessment motivation match what the specifications prescribed, or were elements assessed that could not be derived from the specifications?
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 →