City of Kortrijk may award water treatment DBM contract based on total score
Claim rejected: City of Kortrijk correctly awarded a DBM contract for decentralised water treatment to BelleAqua based on the best total score, where sub-aspects of award criteria do not constitute separately weighted sub-criteria.
What happened?
The City of Kortrijk tendered a DBM contract (Design Build Maintain) through a competitive procedure with negotiation for the construction of a decentralised water treatment system in Bellegembos, serving 56 housing units still discharging directly into surface water. The contract was classified as works (CPV 45232410) and estimated at EUR 265,000. Three candidates were selected, two submitted offers: Plan A2O with an extensive system (reed bed filter) and BelleAqua with an intensive system (activated sludge carrier, largely underground). After negotiations and BAFOs, BelleAqua was awarded with 84.50/100 versus Plan A2O with 82.40/100. The score difference was mainly attributable to the project cost criterion — for qualitative criteria 2 to 4 combined, Plan A2O scored higher. Plan A2O sought suspension with three grounds. In the first ground, Plan A2O argued that the sub-aspects listed under the award criteria constituted sub-criteria requiring separate weighting (Art. 81, §4), and that the contract qualified as a services contract above the European threshold. The Council ruled it was a works contract (publication, CPV code, relative value of works), that the European threshold for works was not exceeded, and that the sub-aspects were not sub-criteria. In the second ground, Plan A2O argued that BelleAqua made oral commitments about nitrogen and phosphate reduction during negotiations without recording them in the BAFO. The Council ruled that the specifications concerned an output-oriented DBM contract not requiring an existing solution, that the reduction targets were not hard requirements, and that the information was verifiable through reference projects and written documents from the negotiations. In the third ground, Plan A2O criticised the assessment of nitrogen/phosphorus treatment and weather dependency of its system. The Council found the contracting authority based its assessment not merely on BelleAqua's statements but on monitoring data and documents from Plan A2O's own offer, and that the score difference for criterion 2 was justified by the element of space usage/compactness. All three grounds were found not serious.
Why does this matter?
This ruling clarifies the distinction between sub-criteria and sub-aspects: assessment elements listed under award criteria are not automatically sub-criteria requiring separate weighting and justification. It also confirms that in output-oriented DBM contracts, the contracting authority has broad discretionary power and may include information from negotiations in its assessment when objectively verifiable through references and written documents.
The lesson
When drafting specifications: clearly indicate whether assessment elements are sub-criteria (with their own weighting) or sub-aspects (weighed within the overarching criterion). As a tenderer in a DBM contract: ensure all relevant performance information is verifiably documented in the file — oral clarifications are taken into account if objectively verifiable. As a losing tenderer, do not selectively criticise isolated sentences from the award report, but consider the justification as a whole.
Ask yourself
Have I clearly formulated the distinction between sub-criteria and sub-aspects in my specifications? Is the information on which I base my assessment verifiable through the file? Have I considered the justification as a whole before drawing conclusions about individual passages?
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 →