Prohibition of Double Evaluation in Public Procurement
Prohibition of double evaluation: ban on using the same criteria as both selection and award criteria. BVergG 2018, CJEU case law. A key distinction in procurement law.
Definition: The prohibition of double evaluation is the procurement-law principle that bars contracting authorities from taking the same facts or criteria into account both in the suitability assessment and in the evaluation of the award criteria, because suitability and award address different subjects of assessment.
Last updated: January 2026 · Legal basis: BVergG 2018, CJEU case law (Case C-532/06 Lianakis)
What is the prohibition of double evaluation?
The prohibition of double evaluation is a fundamental principle of European and Austrian procurement law: one and the same criterion may not be used at the same time to assess a tenderer's suitability and to evaluate its tender.
The principle follows from the systematic separation of two distinct steps in the procurement procedure: first the suitability of the undertaking is assessed (Can the undertaking perform the contract at all?), and then the tender is evaluated (Which tender offers the best value for money?). Suitability relates to the undertaking, the award to the tender.
If the same features are evaluated in both phases, undertakings with particularly strong suitability are favoured twice — once during the suitability assessment (satisfying minimum requirements) and again during the tender evaluation (additional points). This distorts competition and disadvantages tenderers who meet the minimum requirements but are penalised in the overall assessment by the double counting.
Significance and function
The prohibition of double evaluation protects competition and the equal chances of tenderers: every undertaking that meets the suitability requirements should be evaluated solely on the basis of the quality of its tender.
The practical challenge lies in drawing the line: what is suitability, what is a tender-related award criterion? The boundary is often blurred.
Typical impermissible double evaluations:
- The award criterion "number of specialists deployed for this contract" is additionally required as evidence of suitability
- The "number of references" serves both as evidence of suitability and as a quality criterion in the tender evaluation
- "Professional experience of key personnel" appears both as a minimum suitability requirement and as a weighted evaluation criterion
Permissible differentiation:
- As a suitability requirement: at least 3 reference projects of the required type (yes/no requirement)
- As an award criterion: the quality and substantive comparability of the offered reference projects with the specific contract
The distinction is that suitability is assessed in binary form (minimum requirement met or not), while award criteria are evaluated on a graded basis.
Legal basis
Under Austrian law, the prohibition of double evaluation results from the structure of the BVergG 2018, which systematically separates the suitability assessment (§§ 65–91 BVergG 2018) from the award criteria (§§ 91 et seq. BVergG 2018); at EU level it is entrenched by CJEU case law.
In Case C-532/06 (Lianakis), the Court of Justice of the EU clarified that criteria relating to the abilities of tenderers (experience, qualifications, technical equipment) must in principle be used as suitability criteria and not as award criteria. Later case law (Case C-601/13 Ambisig) introduced nuances, in particular for project-specific qualifications of the team designated to perform the specific contract.
Directive 2014/24/EU systematically separates Art. 58 (selection criteria) from Art. 67 (award criteria) into two assessment phases. A directive-conforming interpretation of the BVergG 2018 also requires this separation under Austrian law.
Distinction: suitability vs. award
| Feature | Suitability assessment | Award criteria |
|---|---|---|
| Reference point | The undertaking | The specific tender |
| Logic of assessment | Minimum requirement (yes/no) | Graded evaluation (points) |
| Examples | References, certifications, turnover | Price, quality concept, delivery time |
| Legal basis AT | §§ 65–91 BVergG 2018 | §§ 91 et seq. BVergG 2018 |
| EU law | Art. 58 Directive 2014/24/EU | Art. 67 Directive 2014/24/EU |
Related terms
- Most economically advantageous tender principle
- Lowest-price principle
- Award criteria
- Award decision
- Authorisation to practise
- Tender examination
- Tenderer
- Tender
- Review procedure
- Procurement procedure
FAQ
What is the key difference between selection and award criteria? Selection criteria assess whether an undertaking is in principle able to perform the contract (authorisation, financial standing, technical capacity). Award criteria evaluate which specific tender is the most economically advantageous. Selection criteria are assessed in binary form (met/not met); award criteria are evaluated on a graded basis.
When does impermissible double evaluation occur? Impermissible double evaluation occurs where a contracting authority sets the same requirements (e.g. number of references, professional experience) both as a minimum suitability requirement and as a scored award criterion. It is permissible, by contrast, to use suitability as a threshold (minimum requirement) and to evaluate further quality features of the tender as award criteria.
What are the consequences of impermissible double evaluation? Impermissible double evaluation is a procurement-law infringement that makes the tender challengeable. In review proceedings, the supervisory authority may declare the criteria in question unlawful or annul the tender entirely.
Last updated: January 2026 All information is provided without warranty. For legally binding advice, please consult a law firm specialising in public procurement law.
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