Annulment of lubricant supply contract award — modification during evaluation of 'eco-responsible products' sub-criterion (cumulative → alternative) and inadequate formal motivation
The Council of State annulled the award of a lubricant supply contract to CARMANT, finding the contracting authority modified the 'eco-responsible products' sub-criterion during evaluation by abandoning the cumulative nature of conditions, in violation of transparency and equality principles, without disclosure in the formal motivation.
What happened?
The SPW launched a supply contract for lubricants, detergents and various products for the Walloon Region in 2019, divided into two lots. The initial open procedure failed for lot 1 (all three offers declared irregular). The SPW relaunched lot 1 through a competitive procedure with negotiation (Art. 38 §1(1)(2) of the 2016 Act). Three tenderers submitted offers: SA PROLUB, SPRL CARMANT and ETS JULES-LOUIS DURAY. The 'eco-responsible products' sub-criterion (30 points) defined such products through cumulative conditions: derived from biomass, from organic agriculture, biodegradable (>75% OECD 301), non-bioaccumulative, and certified by a label (Ecolabel type). The administration found no product met all cumulative conditions. It then decided to apply a 'flexible' interpretation, accepting products meeting just one condition instead of all. Result: DURAY scored 30 points (26 products), CARMANT 28.85 (25 products), PROLUB 9.23 (8 products). The contract was awarded to CARMANT on 16 January 2020. In a post-award email of 6 March 2020, the SPW explicitly acknowledged that no product met the specification definition and that it had applied the criteria 'flexibly'. The Council found this modification violated transparency and equality (Art. 4 of the 2016 Act) and the patere legem principle. The formal motivation was also inadequate: the 'flexible' application was neither mentioned nor explained. The decision was annulled with costs (€200 + €20 + €770 procedural indemnity) charged to the respondent.
Why does this matter?
This ruling is a textbook illustration of the prohibition on modifying award criteria during evaluation. Even when no offer fully meets the criteria, the solution is not to apply them 'flexibly' but to relaunch the procedure with adapted criteria. The equal treatment argument — 'we were flexible with everyone' — does not hold: the very modification of the criterion breaches transparency by depriving tenderers of the opportunity to prepare their offer in full knowledge. The ruling also underscores the obligation to disclose any divergent application of criteria in the formal motivation.
The lesson
As a contracting authority: if no tenderer meets a criterion, do not modify it during evaluation. Relaunch the procedure with adapted specifications. A 'flexible' application of a criterion constitutes a de facto modification violating transparency and equality. Any departure from the announced methodology must appear explicitly in the award decision's motivation. As a tenderer: if the contracting authority applied a criterion differently from the specifications, this is grounds for annulment. Retain any post-award correspondence in which the authority acknowledges having adapted the criteria.
Ask yourself
As a contracting authority: are your award criteria realistic? Is a cumulative criterion really what you want, or would alternative criteria be more appropriate? Did you apply criteria exactly as defined in the specifications? Does the formal motivation explain the methodology actually followed? As a tenderer: did the authority modify a criterion during the procedure? Does post-award correspondence reveal a 'flexible' or 'adapted' application of criteria?
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 →