New police building in Melle: a clarification of an award criterion is not yet a separately weighted sub-criterion
The architectural firm Bart Tryhou, ranked third, challenged the Rhode & Schelde police zone’s award of the design assignment for a new police building in Melle to Architectenstudio, but the Council of State held that the contested ‘sub-criteria’ were merely clarifications and that the assessment was reasonably motivated, and dismissed the action.
What happened?
The Rhode & Schelde police zone launched, by negotiated procedure with publication, a services contract for the architectural design and the studies of stability, technical installations and site layout for the construction of a new police building in the municipality of Melle. Of the sixteen candidates, six met the qualitative selection criteria; they were invited to tender by 7 June 2010 and to present their approach and initial vision in person on 9 June 2010. The specification set five award criteria: the offer and the quality of the tender file (5 points), the fee (30 points, under the formula p = 30 × x/y with x the lowest and y the bid concerned), the composition and capacity of the firm or team (20 points), the vision on the task, on ecological and sustainable building and on architectural design (40 points) and the quality procedures and budget control (5 points). Four firms tendered. In the award report of 30 June 2010, Architectenstudio scored 84.2 points, Van Acker & Partners 81.71, Ir.-Architect Bart Tryhou 79.5 — with, however, the maximum 30 points for the lowest fee but only 25 out of 40 for vision — and Beel & Achtergael Architecten 74.2. The contract was awarded to Architectenstudio; Tryhou came third. After its application for suspension under extreme urgency had already been dismissed (judgment no. 206.908 of 13 August 2010), Tryhou pursued the annulment. It argued that certain sub-criteria had not been weighted or assessed separately, that the assessment had taken account of unannounced elements such as a colour print, the firm’s house style, enthusiasm during the presentation, the staff’s CVs and the firm’s equipment, that the fifth criterion had been scored untraceably, and that the substantive assessment lacked objective basis and was inconsistent. The Council of State, endorsing the detailed auditor’s report, rejected each limb. The contested ‘sub-criteria’ — the requested comment on the study agreement under the first criterion, the four aspects of the fourth ‘vision’ criterion — were not autonomous award criteria but mere clarifications to make the criteria sufficiently clear and precise, so that no separate weighting or scoring had to be communicated. The assessment did not take account of unannounced elements: a black-and-white print cost no points (another bidder with a colour print but no comment obtained the same 4.5 out of 5), and the reference to the ‘designer’s own house style’ did relate to the quality of the tender file. On the fifth criterion Tryhou received 4 out of 5, the same as two other bidders, so it could indeed situate its score. Finally, the substantive assessment lacked no factual basis, contained no contradictions and stayed within the bounds of reasonableness. The grievance, raised only in the reply, that the winner’s proposed energy-performance level did not meet the project definition, was a new and therefore inadmissible plea. Since Tryhou did not substantively rebut the auditor’s findings, the Council dismissed the sole plea and the action, and ordered the applicant to pay 350 euros in costs.
Why does this matter?
For services with a strongly qualitative character — architecture is the textbook case — the award debate often turns on how finely the authority must split up and weight its criteria in advance. This judgment draws a useful distinction: not every list under an award criterion is an autonomous sub-criterion. When the specification names four aspects under ‘vision’, or asks under the tender file for comment on the study agreement, these are clarifications that make the criterion more precise, not independent criteria each needing its own weight and score. A bidder demanding a separate weighting for every word in the specification thus finds no support. Equally instructive is the confirmation that an authority may address elements falling under an announced criterion — the house style belongs to the quality of the tender file — without thereby introducing ‘hidden’ criteria, and that a difference in printing only counts if it actually cost points. And the judgment repeats a classic procedural trap: a grievance surfacing only in the reply is a new plea that comes too late.
The lesson
As an authority, you may clarify your award criteria with sub-aspects without having to announce a separate weight for each aspect — but make sure the specification shows the difference between a genuine (weighted) criterion and a mere clarification, and assess only what you announced. As a bidder, do not demand a separate weighting for every sub-aspect; rather, show that the authority let an element weigh that it had not announced and that it cost you points. Moreover, raise all your grievances at once in your application: an argument surfacing only in the reply is a new plea and will no longer be examined. And rebut the auditor’s report point by point, because silence is read as agreement.
Ask yourself
Does your specification clearly show which elements are genuine, weighted award criteria and which are mere clarifications? Do you assess the offers solely on announced criteria, and can you show that an unmentioned element (colour print, presentation) did not affect the points? If you challenge an award, do you show that a hidden criterion was used and that it affected your ranking? Have you included all your grievances in the application rather than raising them only in the reply? And have you substantively answered the auditor’s findings?
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 →