Suspension request for VRT occupational health service contract rejected: innovation assessment within broadly formulated award criterion not unlawful
The Council of State rejects the suspension application under extreme urgency by VZW Premed against VRT's award of an External Service for Prevention and Protection at Work contract to VZW IDEWE, finding none of the three pleas serious — neither the alleged unlawful inclusion of 'attention to innovation' as an assessment element, nor the claimed substantial irregularity due to a sustainability scan, nor the alleged failure to meet the selection criterion regarding public sector experience.
What happened?
VRT launched a simplified negotiation procedure with prior publication for an External Service for Prevention and Protection at Work (EDPBW): medical services, occupational safety support and psychosocial services. The award criteria were price (20 points), vision on cooperation for medical oversight (40 points) and support of internal prevention advisors regarding statutory services (40 points). Two tenderers submitted offers: VZW Premed and VZW IDEWE. After evaluation, IDEWE scored 87/100 and Premed 84/100. On 22 December 2023, VRT awarded the contract to IDEWE. Premed filed a suspension application under extreme urgency with three pleas. In the first plea, Premed argued VRT unlawfully assessed 'attention to innovation' under the third award criterion — an element not mentioned in the specifications. VRT had rated IDEWE higher for a sustainability scan, employee applications and a holistic health approach. The Council found that the third criterion ('the way in which the EDPBW can contribute to VRT's wellbeing policy') was formulated broadly enough to encompass innovative elements. Listing assessment elements in the specifications does not prevent the authority from using elements that constitute a refinement of the stated criteria. The plea was not serious. In the second plea, Premed argued IDEWE's offer was substantially irregular because offering a sustainability scan allegedly violated the Code on Wellbeing at Work, which limits EDPBW activities. The Council found Premed gave an overly selective reading of the Code: the relevant provisions concern the corporate purpose of an EDPBW, not a criminally sanctioned restriction on its actual activities. The plea was not serious. In the third plea, Premed argued IDEWE's occupational physician did not meet the selection criterion of minimum six years' public sector experience. From confidential documents, the Council found the physician had specific experience with the Flemish government, municipalities, police and a public-law cooperative. The plea lacked factual basis. The Council noted a careless reference in the evaluation report to 'an educational institution and pharmaceutical companies' but found this inaccuracy alone did not warrant suspension. All three pleas were rejected.
Why does this matter?
This ruling clarifies the latitude contracting authorities have in applying broadly formulated award criteria. Listing assessment elements in the specifications does not prevent the authority from considering elements that refine the stated criteria, provided those elements are aspects of the relevant criterion. 'Attention to innovation' need not appear as a separate assessment element in the specifications to play a role in evaluation, when the award criterion is formulated broadly enough. The ruling also confirms that a limited additional offering (such as a sustainability scan) does not automatically constitute a substantial irregularity.
The lesson
Formulate your award criteria broadly enough to capture added-value elements, but concretely enough to inform tenderers of what will be assessed. When you formulate broadly ('the way in which the service provider can contribute to wellbeing policy'), you may consider innovative elements as a refinement of that criterion during evaluation — you need not list every possible consideration in advance. A challenger must demonstrate that the assessment elements applied fall outside the boundaries of the award criterion, not merely that they are not literally stated in the specifications.
Ask yourself
As contracting authority: are my award criteria broad enough to capture qualitative added value, yet clear enough so tenderers know what is expected? Are the assessment elements I apply a refinement of the award criterion, or do they fall outside its scope? As tenderer: if I lose points on elements not literally stated in the specifications, are those elements genuinely a refinement of the award criterion? Or do they truly fall outside the subject matter of the criterion?
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 →