A fuel card that unblocks itself after 24 hours cost G&V the contract: MIDOW police zone suspended over hidden sub-criteria
The Council of State suspended, under extreme urgency, the award of the MIDOW police zone’s fuel contract to Gabriëls & Co, because the criterion ‘fuel card management’ had in reality been split into eight never-announced weighted sub-criteria — including whether a card stays permanently blocked after three wrong PIN entries — while G&V Servicestations finished a mere 0.7 points short of winning.
What happened?
The local police zone MIDOW (Meulebeke-Ingelmunster-Dentergem-Oostrozebeke-Wielsbeke) launched a negotiated procedure without prior publication for the ‘supply of fuel for service vehicles’ (specifications 2022/2): 25 diesel vehicles, one petrol car and five motorcycles, to be refuelled with fuel cards. The specifications set three award criteria: the discount offered on the official fuel price (50 points), the proximity of available stations (30 points) and fuel card management (20 points), the latter described as the way cards are requested, the delivery time and the online monitoring tool. Three tenderers submitted offers: G&V Servicestations, Gabriëls & Co and Kuwait Petroleum (Q8). G&V offered the highest discount (0.1765 euros per litre against 0.1720 for Gabriëls) and took the full 50 points; all three scored 30 out of 30 on proximity. But on the third criterion the police zone deducted two points from G&V and Q8 because their fuel cards, after three wrong PIN entries, unblock automatically after 24 hours, whereas Gabriëls’s card stays blocked until someone intervenes manually. Final ranking: Gabriëls 98.7, G&V 98, Q8 90.9. On 4 November 2022 the police board awarded the contract to Gabriëls & Co. A table annexed to the award report — which G&V only saw after inspecting the administrative file — moreover revealed that the third criterion had been split into eight sub-criteria, each weighted at two or four points, including ‘security: blocking after 3 wrong PINs’ at four points. Six of the eight departed entirely from the wording in the specifications. The Council of State held that the police zone had applied the award criterion differently from how it had announced it in the specifications, and that the undisclosed weighted sub-criteria breach the principles of equality and transparency. Given the margin of barely 0.7 points, this could decisively affect the ranking: the first plea was serious and the Council ordered suspension under extreme urgency. The second plea — that the specifications had been tailored to Gabriëls because only its system in the region keeps cards permanently blocked — was held not serious: the specifications did not even require permanent blocking.
Why does this matter?
The judgment bundles two classics of procurement litigation into one file. One: a contracting authority may not apply an award criterion differently from how it described it in the specifications. Technical requirements — here card security — belong to the regularity review, not to the scoring, unless the specifications expressly say so. Two: whoever splits a criterion into weighted sub-criteria must announce that split and weighting in advance, because tenderers must know, when drafting their offer, what earns them points. Had G&V known that permanent card blocking was worth four points, it could have drafted its offer differently. The judgment also shows how sharply this can play out: with a margin of 0.7 points out of 100, an unlawful two-point deduction was enough to flip the ranking. Finally, the decisive table of sub-criteria only surfaced upon inspection of the administrative file — a reminder of the value of that right of inspection for unsuccessful tenderers.
The lesson
For contracting authorities: assess offers solely on what the specifications announce as assessment elements. If you want security, ease of use or any other aspect to count, write it out as a (sub-)criterion with a weighting — assessment elements added after the fact are a classic ground for suspension. For tenderers: if you lose narrowly, request access to the administrative file and lay the award report next to the specifications. Every assessment element absent from the specifications, every silent split into weighted sub-criteria, yields a serious plea — especially when the points margin is smaller than the contested deduction.
Ask yourself
Is every element for which you award or deduct points actually stated in the specifications as part of an award criterion? As a contracting authority, do you split an award criterion into weighted sub-criteria — and if so, were that split and weighting announced in advance? Do you keep the regularity review (does the offer meet the technical requirements?) strictly separate from the assessment against the award criteria? And as a narrowly unsuccessful tenderer, have you inspected the administrative file to lay the real scoring table next to 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 →