Bailiffs for the Walloon tax authority: the award of lot 7 suspended because the sub-criteria were invented only after the opening
The Council of State suspended, under extreme urgency, the award of lot 7 of the Walloon contract for the recovery of regional taxes by bailiffs, because the authority had assessed the tenders against an array of sub-criteria and sub-sub-criteria not announced in the specifications which, had the bidders known them, would have led them to adapt their tenders — and because the risk of prescription of tens of millions of euros in tax claims did not outweigh the restoration of legality.
What happened?
The Walloon Region launched a public services contract for the recovery of claims — from the interrupting formal notice to forced execution — by bailiffs, charged with collecting all existing and future regional taxes (TV licence fee, taxes on water, on non-household waste, on machines, on games and betting, vehicle tax, eurovignette, etc.). The contract (specifications no. 07.00.01-13GO5) was awarded by open call for tenders and comprised twelve lots built around the judicial cantons. Ten extreme-urgency suspension applications were brought against the award of various lots. This action concerned lot 7, which by decision of 4 September 2014 had been awarded to the associations Intermediance & Partners, C.D.D.S. and Vedru, while the association formed by the applicants — Alterius and Olivier Genin-Huissier de Justice — was designated reserve beneficiary. The Council admitted the interventions of the lot 7 beneficiaries. On the merits, the case turned on the award criteria. The specifications (articles 23 and 24) listed four criteria: recovery methodology (30 points), operational and organisational capacity (30 points), internal software (20 points) and execution times (10 points), some divided into announced sub-criteria. The evaluation report, however, showed that the authority had systematically split those criteria, in comparing all tenders, into numerous unannounced sub-sub-criteria, each with its own points allocation: the first criterion into ten (A1 to A10, 3 points each, on matters such as cross-checking files beforehand, sending out certificates of insolvency or avoiding records of insolvency), the second into nine (B1 to B9, with points according to the number of appointed bailiffs, deputies, staff and the telephone and physical availability), and the third into ten (C1 to C10, on the accessibility and user-friendliness of the software). The Council recalled that an authority may specify an announced award criterion in ‘headings’ or ‘subdivisions’ with their own weighting, but must respect equal treatment and transparency. Where such a heading is applied systematically to all tenders and each time yields a separate score, it is in reality a sub-award-criterion. The legality of unannounced sub-criteria requires three cumulative conditions: they may not modify the criteria defined in the specifications, they may not contain elements which — if known when preparing the tender — could have influenced that preparation, and they may not have been adopted by taking into account discriminatory elements. Here those conditions were not met: sub-sub-criteria A2 and A5, if known to be decisive, would have influenced the tender’s preparation; with B1 to B4 the authority had modified the criterion by looking only at the global number of bailiffs, deputies and staff and awarding only one point out of fifteen for staff specifically reserved for the contract, without regard to diplomas or working time; B8 distorted the sub-criterion; B5 to B7 appeared incoherent; and C5 and C7 were not reasonably foreseeable. The second plea was therefore serious. In the balance of interests, the Region pointed to the heavy consequences of a suspension: the procurement procedure had frozen recovery and threatened the prescription of thousands of claims — over 81.5 million euros for vehicle tax and the TV licence fee alone, plus a possible prescription of nearly 33 million euros of TV licence fee by the end of 2015. The Council nonetheless held that, given the means available to a tax administration, the continuity of the public service was not so imperilled that it had to prevail over restoring legality, and that such restoration did not necessarily mean the whole procedure had to be redone. The Council admitted the interventions, suspended the execution of the award of lot 7, ordered the immediate execution of the judgment and reserved the costs, including the procedural indemnity.
Why does this matter?
The judgment is a clear application of the rule that award criteria must be transparent in advance. An authority may refine an announced criterion, but once it applies a ‘heading’ systematically to all tenders and scores it, it becomes a sub-award-criterion subject to strict conditions. The threefold test — no modification of the criteria, no elements that could have influenced the tender, no discriminatory elements — gives bidders a concrete weapon against grids of sub-sub-criteria invented after the fact. Equally important is what the judgment teaches about the balance of interests in summary proceedings: even a risk, quantified by the Region, of tens of millions of euros in prescribing tax claims was not enough to prevent the suspension, because a tax administration has other means and restoring legality need not redo the whole procedure. The message for authorities is sharp: build your evaluation grid before the opening and announce the sub-criteria you will actually score; if you do not, even a major public interest does not necessarily outweigh the breached transparency.
The lesson
For bidders: if, after a loss, you wonder why you scored low on certain points, check whether the authority assessed your tender against sub-criteria or sub-sub-criteria that were not in the specifications. If such grids were applied systematically to all tenders, they are disguised sub-award-criteria, and they are valid only if they do not modify the criteria, contain no elements that could have influenced your tender and are not discriminatory. If you spot ambiguity in the criteria before the opening, signal it in writing (article 86 of the Royal Decree of 15 July 2011), as that strengthens your position. For authorities: refining an announced criterion is allowed, but any element you systematically score and that could have steered the preparation of tenders belongs in the contract documents in advance. And do not count on a major public interest — even the risk of millions in prescribing tax claims — to ward off a suspension where transparency has been breached.
Ask yourself
Was your tender assessed against sub-criteria or sub-sub-criteria not in the specifications, and were they applied systematically to all tenders? Do those unannounced sub-criteria meet the three conditions: no modification of the criteria, no elements that could have influenced the tender, nothing discriminatory? Did you signal ambiguities in the award criteria in writing before the opening, as article 86 of the Royal Decree of 15 July 2011 allows? As an authority: is every element you systematically score, and that could have steered the preparation of tenders, actually announced in the contract documents?
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 →