Bidder's experience as an award criterion: the Flemish Mobility department trips over the selection/award distinction
The Council of State suspends the award of a framework agreement for project preparation along waterways because the second award criterion effectively assessed the bidder's experience — a classic selection criterion — rather than the intrinsic value of the offer.
What happened?
The Mobility and Public Works department (MOW) of the Flemish Government launches a single-party framework agreement for services titled 'Plan- and project preparation of infrastructure and dredging works in and along waterways' — typical intellectual services in a highly specialised domain. The specifications contain two award criteria, the second (50 points) ominously named 'Capacity to handle the full spectrum of the contract'. Its description leaves little doubt: 'The bidder is assessed on the basis of its demonstrable experience and expertise' in 'area experience' and 'specialist knowledge', substantiated by up to three reference projects from the last five years. Two bidders submit offers: company S. and a competitor. On 12 February 2026, the department awards the contract to the competitor. Company S. goes to the Council of State under extreme urgency. Its second plea goes to the heart: using 'bidder's experience and expertise' as an award criterion conflates selection criteria (Art. 71 of the Law of 17 June 2016) with award criteria (Art. 81). The contracting authority defends itself: the criterion assesses intrinsic value, because the reference projects also contain information on 'the team used, the approach and lessons learned' — Art. 81, §2(1)(b) (organisation, qualifications and experience of staff executing the contract). The Council is not convinced. The principle first: award criteria probe the intrinsic value of the offers; selection criteria the suitability of the bidders. Art. 81 §2(b) is an exception for intellectual services where personnel significantly affect execution level — but the authority must prove that impact. Here? The criterion literally says 'the bidder is assessed', not the offer. 'Information on the team' is just one among several aspects of the reference projects. And the award report only assesses the bidders' own references and capabilities, not the staff actually deployed for this contract — let alone demonstrating a link between that staff and the execution level. The second plea is serious. The Council orders the immediate suspension of the award decision.
Why does this matter?
This is a classic that keeps reaching the Council of State: selection criteria dressed up as award criteria. For intellectual services (engineering consultancies, architects, advisers), there is constant temptation to score 'reference projects' or 'experience with similar contracts'. It is allowed — but only within the strict confines of Art. 81, §2(1)(b): the criterion must assess the organisation, qualifications and experience of the staff that will execute the contract, and the authority must demonstrate that this personnel quality significantly affects the level of execution. Generic company experience is not an award criterion.
The lesson
If you want to factor 'experience' or 'reference projects' into the award for an intellectual-services contract, make sure that your criterion (1) explicitly assesses the team that will execute the contract, not the company in general; (2) explains in the specifications why that personnel's quality significantly affects the execution level; and (3) your assessment report actually tests the proposed team, not the bidder's general references.
Ask yourself
Take your most recent specification for a services contract where 'experience' or 'references' appear as award criteria. Does the scoring literally say 'the bidder is assessed on…' or 'the proposed team is assessed on…'? If the former — rewrite before awarding.
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 →