Selection and award criteria often look the same — a reference list, a CV, a methodology — but legally they have nothing to do with each other. One measures whether you are suitable as a company; the other measures whether your bid is the best one. A bidder who misses the distinction submits a weak bid: either they fail the selection, or they miss points at the award, or they end up before the Belgian Council of State because a misplaced criterion wrongly excluded them. This article sets out the legal distinction, the European case-law and the recent Belgian case-law — with the practical consequences for bidders.
The fundamental separation: two examinations, two moments
Belgian law prescribes a two-stage assessment. First, the contracting authority examines whether the bidder is suitable to perform the contract — the qualitative selection. Only then does it assess the substance of the bids against the award criteria. This separation is not a formality. It is a European principle resting on more than thirty years of case-law.
The foundational ruling is Beentjes (C-31/87) of 20 September 1988. The Court of Justice stated bluntly: “The examination of the suitability of contractors and the award of the contract are two distinct operations.” Selection measures the company’s qualities (financial strength, experience, certificates); the award measures the qualities of the bid (price, technical proposal, plan of approach, life-cycle cost).
In Belgium this separation is codified in two distinct chapters of the Public Procurement Act of 17 June 2016:
| Examination | What? | Act of 17 June 2016 | Directive 2014/24/EU |
|---|---|---|---|
| Exclusion grounds | Are you allowed to participate? | Art. 67–69 | Art. 57 |
| Selection criteria | Can your company handle it? | Art. 71 | Art. 58 |
| Award criteria | Which bid is most advantageous? | Art. 81 | Art. 67 |
| Proof | How is it proven? | ESPD / attestations | Art. 59 |
The Flemish Public Procurement Guide confirms this order in its bid examination workflow: first qualitative selection, then examination of regularity, then assessment against the award criteria. Reversing the order breaches the rule of separation.
Selection criteria — three categories, exhaustive
Belgian law applies a closed system for selection. Article 71 of the Public Procurement Act of 17 June 2016 (elaborated in Articles 65–79 of the Royal Decree of 18 April 2017) lists three — and only three — types of criteria:
- Professional aptitude: registration in a professional or trade register, mandatory accreditation (e.g. accreditation as a contractor in a given category and class), specific authorisations (FASFC, environmental, etc.).
- Economic and financial standing: turnover, annual accounts, bank declaration, professional liability insurance.
- Technical and professional capacity: lists of references to similar contracts, staff qualifications, technical equipment, quality assurance systems.
A contracting authority may, within these three categories, set stricter or more lenient requirements — proportionate to the contract — but cannot add anything that does not fit one of the three boxes. For a deeper analysis, see the article on selection criteria in public procurement.
Award criteria — the most economically advantageous tender, in three forms
Article 81 of the Public Procurement Act of 17 June 2016 transposes the EU rule that contracts go to the bidder whose offer is most economically advantageous. The concept takes three statutory forms:
- Lowest price — pure price comparison, typically for standardised supplies or simple works.
- Lowest cost on a cost-effectiveness or life-cycle cost basis — total cost of ownership over the lifespan (Article 82).
- Best price-quality ratio (most economically advantageous tender, MEAT) — price or cost combined with qualitative criteria.
For a deeper analysis, see the article on award criteria and price/quality.
The statutory conditions apply to all three forms: award criteria must be linked to the subject matter of the contract, transparently announced in the tender specification, objectively assessable, and must not discriminate on the basis of nationality or place of establishment.
From Beentjes via Lianakis to Ambisig: 37 years of European case-law
Belgian practice is strongly shaped by three European rulings. Anyone who wants to grasp the legal distinction between selection and award has to know these three.
Beentjes (1988) — the principle of separation
In C-31/87, the Court laid down the principle: the suitability examination (selection) and the award are two distinct operations. A contracting authority cannot use award criteria to score experience or company characteristics in disguise — that is what selection is for. Importantly, the ruling allowed an award criterion of “most acceptable bid”, provided the criteria were objective and did not confer unlimited discretion.
Lianakis (2008) — prohibition on conflation
The C-532/06 Lianakis ruling made the separation stricter. Under the former Directive 92/50, the Court expressly prohibited the use of experience, staff and equipment as award criteria: these belong to selection. Lianakis remains relevant in principle today — a contracting authority cannot disguise a selection element as an award criterion in order to “score experience on top”. But in its absolute formulation, Lianakis is now partly superseded in Belgium by the changes brought by the new Directive 2014/24/EU.
Ambisig (2015) — team experience may count, under strict conditions
The C-601/13 Ambisig ruling of 26 March 2015 qualified Lianakis: where execution quality “may, to a decisive extent, depend on the worth of the persons entrusted with execution”, the contracting authority may indeed include the organisation, qualification and experience of the team as an award criterion. The Court had particularly in mind intellectual services — advisory, design, audit, architecture — where the specific team co-determines the deliverable.
This line was then codified in Article 67(2)(b) of Directive 2014/24/EU and in Article 81 §2, 3°, b) of the Belgian Public Procurement Act of 17 June 2016. Both provisions allow team experience as an award criterion where the quality of the staff has a significant impact on the level of performance. But these provisions are no blank cheque: they impose conditions that the Belgian Council of State enforces strictly.
The Belgian line: Council of State 2020–2026
The Belgian Council of State has kept the European standard sharp in recent years, in several rulings sanctioning conflation between selection and award.
Sub-award criteria vs. appraisal elements (early 2024)
According to an Advocalex analysis of a ruling of late January 2024 (no. 258.671), the Council of State clarifies three concepts often confused in tender analysis:
- Award criteria: the main yardsticks against which the bid is assessed (e.g. price, technical quality, plan of approach).
- Sub-award criteria: “elements used to systematically differentiate” between bids. Where they are used to determine scores systematically, they must be announced in advance in the tender specification.
- Appraisal elements: supporting factors that the panel takes into account when scoring, without their own weighting.
The line is blurry in practice: where a purported “appraisal element” in reality determines, in a systematic way, the score for an award criterion, it is legally a sub-award criterion. Unannounced sub-criteria breach the transparency rule and are grounds for suspension.
Experience gained with previous employers (early 2024)
According to a published analysis by Rasschaert Lawyers of a ruling of early February 2024 (no. 258.676), the Belgian Council of State confirms that the contracting authority cannot exclude a priori the experience of individual team members gained with previous employers. The assumption that references would relate only to projects of the legal entity itself is legally incorrect: a team CV is a separate evidential category.
For bidders, the implication is that a team that moves together to a new company can rely on its previous experience, provided the tender specification adopts that as a criterion. For contracting authorities: the tender specification must make clear how team experience is weighted.
References as an award criterion — strict justification requirement (autumn 2024)
A published analysis by Publius and GD&A Advocaten discusses a ruling of early November 2024 (no. 261.295) as a recent key ruling on the Belgian transposition of Ambisig. The Belgian Council of State held: a mere “list of references” does not suffice as an award criterion. The contracting authority must expressly state in the tender specification that qualified staff or specific experience has a significant impact on performance quality. Failing this, the criterion is a disguised repetition of a selection element and legally unlawful.
The consequences are far-reaching: an unlawful award criterion in principle makes it impossible to award on the basis of the tender specification. Suspension or annulment then becomes the logical outcome.
Unannounced sub-sub-criteria (late 2020)
In an older but still frequently cited ruling of the Belgian Council of State (no. 249.215, December 2020 — see the Publius contribution in the sources), an award was annulled where four sub-award criteria and sixteen sub-sub-criteria had been applied without being set out in advance in the tender specification. The contracting authority presented them after the fact as “appraisal elements”, but the fact that they were used systematically to determine scores made them legally sub-criteria. The consequence: breach of the principles of transparency and equality.
The four grey zones — what goes where?
Four categories keep returning in tender analysis. The legal placement is not always self-evident.
1. References
Default: selection. A reference list measures whether your company has performed similar contracts — typically a component of technical capacity (Article 71 of the Public Procurement Act of 17 June 2016, elaborated in the Royal Decree of 18 April 2017).
Exception: award, provided the Ambisig test is met. The contracting authority must expressly state in the tender specification that the specific experience of the executing team has a significant impact on performance quality. A reference list used as an award criterion must additionally receive its own weighting formula that does not overlap with the selection threshold.
Common mistake: the same reference list is used both as a selection threshold and as an award criterion, without the tender specification providing the Ambisig justification. The Belgian Council of State systematically sanctions this.
2. Team CVs and key people
Default: selection. Staff qualifications are a component of technical capacity.
Exception: award, under the same Ambisig conditions. This is mainly admissible for intellectual services (architecture, engineering, consultancy, IT architecture, legal services). The contracting authority must justify that staff quality is decisive, and in practice bidders are held to a team stability clause: the named team cannot simply be replaced during performance without consent.
Common mistake: CVs are scored at the award stage on generic features (years of experience, diploma) without a link to the contract. That is not an Ambisig-compliant award criterion but a repetition of selection.
3. Methodology and plan of approach
Default: award. A methodology describes how you would perform this specific contract. It is an intrinsic feature of the bid and logically belongs at the award stage.
But watch out: where the tender specification asks about the “general way of working” or the “quality of the organisation” without a link to this contract, the legal nature shifts to selection. What the bidder does in their day-to-day operations is selection; what they propose for this contract is award.
4. Certificates and labels
Default: selection. An ISO 9001 certificate, a VCA attestation, an environmental management system are evidence of technical capacity.
Exception: certain environmental and social labels can be used as award criteria, provided the tender specification allows “or equivalent” (see the Max Havelaar (C-368/10) ruling) and the burden of proof is open. An award criterion “bonus points for holding label X” is lawful only where any equivalent evidence is accepted.
The evidence apparatus — ESPD for selection, the bid for award
Selection and award do not use the same evidence. That is a practical consequence of the legal separation.
Selection: the European Single Procurement Document (ESPD)
For contracts above the EU thresholds, the ESPD is mandatory. It is a structured self-declaration by which the bidder confirms that they are not in any exclusion situation and that they meet the stated selection criteria. Since 31 March 2024, a new ESPD tool from the European Commission replaces the old interactive PDF — the content is unchanged. For the practical filling-in guide, see our article on completing the ESPD.
Below the EU thresholds, Belgium applies the implicit declaration on honour: the mere submission of a bid amounts to a declaration that you meet the exclusion and selection conditions. The contracting authority verifies via Telemarc — no separate document is required.
Award: the bid itself
For award criteria there is no ESPD equivalent. The bidder proves their offer through the bid: prices in the bill of quantities, a developed plan of approach, technical fact sheets, CVs of the executing team (where Ambisig-compliant), warranty periods, delivery times. The panel assesses on the basis of what is in the bid — what is not there does not count.
Regularisation: an overlooked way out for selection evidence
For selection evidence there is an important way out that is missing for award: the regularisation power of the contracting authority. The Court of Justice accepts in the Manova (C-336/12) ruling that a contracting authority may have a missing or incomplete document supplemented, provided the document objectively predates the deadline for submission and the tender specification does not expressly prohibit this on pain of exclusion. Forgetting to include an attestation is therefore not always fatal — ask in good time about the possibility of regularisation. For award documents (prices, methodology, CVs as an award criterion), this leeway does not exist: what is missing is not scored.
What to do as a bidder when criteria are mixed?
Do not expect every tender specification to be legally pristine. Contracting authorities make mistakes regularly — a reference list that is both selection and award, a methodology placed under the selection heading, a label bonus without an equivalence clause. You have three options:
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Ask via the Q&A forum before the deadline. Be specific: “Does criterion X apply as a selection criterion or as an award criterion? Which legal basis (Article 71 or Article 81) does the contracting authority rely on?” A written answer is binding on all bidders and preserves your rights.
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Preserve your rights when in doubt. If after the Q&A round the tender specification still looks unlawful and you do not submit a bid (or you submit one that is excluded), you may apply for suspension of the procedure or the award decision under the extreme-urgency procedure. The standstill period is 15 calendar days from the reasoned notification of the award decision. After that, only an annulment action remains possible — without suspensive effect.
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Bid under reservation — carefully. A reservation on essential tender conditions is a substantial irregularity and leads to exclusion (see our article on common irregularities in tenders). A neutrally worded notification that you reserve your rights to contest is, by contrast, acceptable — but ideally have it reviewed by a procurement lawyer.
The overview in one table
| Question | Selection | Award |
|---|---|---|
| What is assessed? | The company | The bid |
| Legal basis (BE) | Art. 71 Public Procurement Act of 17 June 2016 (exclusion: Art. 67–69) | Art. 81 Public Procurement Act of 17 June 2016 |
| Legal basis (EU) | Art. 58 Directive 2014/24/EU (exclusion: Art. 57) | Art. 67–69 Directive 2014/24/EU |
| When assessed? | Before bids are assessed on the merits | Only after selection |
| Evidence | ESPD / attestations / implicit declaration | The bid itself |
| Reliance on third parties? | Yes, more limited for professional aptitude | Not applicable (the bid itself counts) |
| Team experience? | Default here | Exceptionally here (Ambisig) |
| References? | Default here | Exceptionally here (with justification) |
| Methodology / plan of approach? | Not here (general working method = selection) | Here (concrete approach for this contract) |
| Sub-criteria announced in advance? | Yes | Yes |
Common mistakes — on both sides
Contracting authorities. Using one and the same reference requirement as a threshold and as award points without Ambisig justification. Scoring CVs on generic parameters unrelated to the contract. Applying sub-sub-criteria that were not in the tender specification. Including a “quality of the organisation” criterion at the award stage.
Bidders. Filling in an ESPD as if it were a sales pitch. Hiding award arguments in selection attestations. Including company history in a plan of approach instead of a concrete execution methodology. Letting a disguised conflation pass without a forum question, and then trying to invoke it afterwards — legally a weak argument.
Conclusion — those who see the distinction bid stronger and preserve their rights
The separation between selection and award is not an administrative formality. It is a fundamental European principle backed by 37 years of case-law, a Belgian statutory transposition in two distinct chapters, and an active enforcement line at the Council of State. For a bidder, the distinction has three concrete consequences: you know which evidence belongs where, you recognise a disguised conflation as a legally weak point in a tender specification, and you spend your writing time where it counts — selection is sold through attestations, award is sold through a well-reasoned bid.
Sources
- Public Procurement Act of 17 June 2016 — BOSA
- Royal Decree of 18 April 2017 (placement, classical sectors), Articles 65–79 — BOSA
- Directive 2014/24/EU, Articles 56–58 and 67–69 — EUR-Lex
- CJEU, Beentjes (C-31/87) — EUR-Lex
- CJEU, Lianakis (C-532/06) — EUR-Lex
- CJEU, Ambisig (C-601/13) — EUR-Lex
- CJEU, Max Havelaar (C-368/10) — EUR-Lex
- Advocalex — Distinction between award criteria, sub-criteria and appraisal elements (Belgian Council of State no. 258.671, 31 January 2024)
- Rasschaert Lawyers — References and team experience (Belgian Council of State no. 258.676, 2 February 2024)
- Publius — References as award criterion (Belgian Council of State no. 261.295, 5 November 2024)
- GD&A Advocaten — References and experience as an award criterion
- Flemish Public Procurement Guide — Bid examination
- BOSA — European Single Procurement Document (ESPD)