Bierset control tower: Bureau Pierre Berger scores full marks on price but loses to TPF Engineering by 1.49 points — whoever challenges the scores must show that the errors overturn the ranking
Bureau d’études Pierre Berger SA, second with 93.85 points against 95.34 for TPF Engineering in SOWAER’s contract for an engineering consultancy for the electrical and HVAC installations of the Liège-Bierset control tower, recalculated itself into first place through a series of corrections, but the President of the VIth Chamber dismisses the extreme-urgency application: the Council does not rescore bids, and even the points that might have been rightly contested do not close the 1.49-point gap.
What happened?
The Walloon airports company SOWAER (Société wallonne des aéroports) used a negotiated procedure with publication to appoint a building-services engineering consultancy for the renovation of the electrical and HVAC installations of the control tower at Liège-Bierset airport, under specification no. SOWAER/ET/LG/171/2009. Five bids were received at the opening on 1 September 2010. There were four award criteria: the bid price (60 points), the quality of the planning for the various project phases (15 points), the completion period (10 points) and the quality of the bid (10 points). On 2 February 2011 SOWAER awarded the contract to Bureau d’études TPF Engineering SA for EUR 120,491.50 excluding VAT; the reasoned decision was notified to Bureau d’études Pierre Berger SA by registered letter of 8 February 2011. Pierre Berger had obtained the maximum 60 points on price, but finished second with 93.85 points, 1.49 points behind TPF Engineering (95.34). On 23 February 2011 Pierre Berger applied, in a single application, for annulment and suspension under the extreme-urgency procedure. SOWAER first contested admissibility: the decision to go to the Council of State had allegedly not been taken by the competent body. The Council referred to Article 19 of the articles of association, which allows the managing director to represent the company in legal proceedings without having to prove a prior board decision; Pierre Berger had decided as managing director, so the application was admissible. On the merits, Pierre Berger attacked the scores on criteria 2 to 4 and recalculated its own total at 96.25 points, against 92.14 for TPF Engineering. On planning (criterion 2) it argued that SOWAER had penalised TPF Engineering and another bidder, Boydens NV, differently for the same shortcoming — failing to show free float and critical path — and that TPF Engineering had provided no GANTT or PERT charts for the design and works schedules; it sought a 3-point deduction for the winner. On the completion period (criterion 3) it considered its deduction for staffing unjustified, since it had attended the negotiation meeting of 24 November 2010 with the required minimum team plus two experienced engineers (HVAC and electrical), and it contested an additional 1-point deduction on the ground that its representative lacked sufficient technical qualifications — a double penalty, in its view, as that point belonged under criterion 4. It also argued that SOWAER had wrongly included the imposed approval periods in the proposed periods. Odile Daurmont, President of the Chamber, recalled that the Council does not substitute its own numerical assessment for that of the contracting authority: it can only find errors, and these must be established with certainty and affect the ranking. On criterion 2 the Council accepted that Pierre Berger had an interest in complaining that the winner had been treated with ‘mansuétude’ (leniency), but on the merits both had received the maximum score for the planning note, the specification did not prescribe where the examples had to appear, and the 0.25-out-of-2 deduction for its own schedule (which departed from the principles in its note and ran over three pages instead of one) was no more unreasonable than the two 0.25-point deductions for TPF Engineering. On criterion 3 TPF Engineering had substantiated its period in a detailed note, including 360 working hours for the first phase, whereas Pierre Berger had only stated a number of working days; it was not unreasonable to regard a period in days, without precise staffing, as less precise, nor to take staffing into account both for the completion period and for bid quality. Even if the approval-period argument were right, it concerned at most 0.2 points. Adding the 0.9 points Pierre Berger claimed under criterion 4, the 1.49-point gap remained. The single plea was not serious; the application was dismissed and costs were reserved. First Auditor Thibaut had given a concurring opinion.
Why does this matter?
With a tight ranking, it is tempting to submit one’s own recalculation in which one comes out on top. This judgment shows why that rarely works. The Council of State exercises a marginal review of scoring: it does not score itself, but looks for established errors that change the ranking. The applicant must therefore show, for each complaint, a manifest error of assessment, and then that the sum of the justified corrections closes the gap. The judgment applies that second step very concretely: even assuming the complaints about 0.2 and 0.9 points are well founded, a gap remains. At the same time it contains a useful acknowledgement: a bidder does have an interest in complaining that the winner was treated more leniently than a third bidder for the same shortcoming, because such unequal treatment can affect the final ranking. For contracting authorities, the judgment confirms that a detailed report explaining, bidder by bidder, why a fraction of a point is deducted makes all the difference. And on substance, the Council accepts that a completion period substantiated in working hours and with concrete staffing may score better than a period in days without such support — even if the same resources also count under another criterion.
The lesson
For bidders: when challenging scores, build your plea in two layers. First, for each criterion, a concrete, demonstrable error of assessment, not an alternative appreciation. Then, a realistic calculation showing that the well-founded complaints together close the gap. Do not stack maximum corrections to finish first on paper; the Council sees through it and weighs each complaint separately. And substantiate in your bid whatever is being scored: a completion period in working hours, with a team set out in black and white, weighs more than a period in days and a team that only appeared at the negotiation meeting. For contracting authorities: give reasons for every deduction, even a quarter of a point, per bidder and per aspect, and apply the same yardstick to the same shortcoming across bidders. A report that makes this visible is your best defence. If staffing is to count under several criteria, make that clear in the specification to forestall the complaint of double penalisation.
Ask yourself
As a bidder: can I point, for each criterion, to a concrete, established error of assessment, or am I merely setting my own appreciation against the authority’s? As a bidder: does the sum of my reasonably well-founded complaints close the points gap, even if the Council rejects my weakest ones? As a bidder: is everything being assessed (team composition, hours, planning techniques) set out in writing in my bid, and not only in what I said at the negotiation meeting? As a contracting authority: does my report state, per bidder and per sub-aspect, the reason for each deduction? As a contracting authority: have I penalised the same shortcoming with the same deduction across different bidders? As a contracting authority: does the specification make clear whether an element, such as staffing, counts under more than one criterion?
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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 →