Cheapest but not best: Audenaert loses the Eeklo road-maintenance contract on two points for ‘approach plan’ and three for ‘quality assurance’
A. Audenaert submitted the lowest price for road maintenance in the Eeklo district (493,755.63 euros against 518,954.48 euros for Janssens) and scored the full 65 points on price, yet lost the contract 76 to 78 because its approach plan and quality assurance scored lower; the Council of State dismissed its extreme-urgency application because the award decision gave concrete reasons for those differences, the evaluation elements in the specifications were not hidden sub-criteria, and the third plea relied on the wrong articles.
What happened?
Through the Agency for Roads and Traffic, East Flanders division, the Flemish Region launched a general call for tenders for the ‘maintenance lease and repair works following damage to regional roads (including damage to crash barriers) in the Eeklo district (D413)’. The notice appeared in the Bulletin der Aanbestedingen on 25 October 2011; the estimate was 469,903.05 euros. Special specifications no. 1M3D8H/11/65 used three award criteria: price (65 points), ‘approach plan (approach and methodology)’ (25 points) and ‘quality assurance’ (10 points). Four bidders tendered; only the bids of Audenaert and Janssens were selected and found regular. The award report of 5 January 2012, which upon approval also constituted the award decision, ranked Janssens first with 78 points (62 for its price of 518,954.48 euros, 10 out of 25 for the approach plan, 6 out of 10 for quality assurance) and Audenaert second with 76 (the maximum 65 for its price of 493,755.63 euros, 8 out of 25 and 3 out of 10). The administrator-general approved the report on 12 March 2012; on 14 March 2012 Audenaert received the reasoned decision by registered letter. On 22 March 2012 Audenaert applied for suspension under extreme urgency. The Region raised two objections (the validity of the decision to litigate and the admissibility of the challenge to the ‘implicit’ non-award), but the Council left them unanswered because the substantive conditions for suspension were not met anyway. Under the then new article 65/15 of the Act of 24 December 1993, only the seriousness of the pleas had to be examined. In its first plea Audenaert argued that both bids used ‘the same methodology’ for the approach plan and quality assurance, so no point difference was possible and the contract could only go to it as the cheapest bidder; it further alleged hidden sub-criteria with an unknown weighting. The Council re-read the award decision: it listed, per bid, concrete positive and negative elements — for Audenaert, an inconsistency about an ‘asphalt contractor’ while it declared it would use no subcontractors, much text copied from the specifications, a ‘very theoretical’ account of site safety and no named processor for waste removal; for Janssens, among other things, a waste register, direct removal to Aclagro and De Bree, self-monitoring and training. Audenaert did not dispute those findings at the hearing and did not show that the negative points were wrong or that positive aspects had been ignored. A two-point gap out of 25, with low scores for both bidders, seemed to the Council consistent with the finding that the bids were ‘equivalent’ on many points but that the balance tipped in Janssens’s favour. There were no sub-criteria: those require ‘predetermined data against which the bids are compared more or less systematically’, whereas the elements in the specifications (work organisation, cooperation with the authority, limiting nuisance, safety, environment, waste streams, on-call service) were explanatory elements serving to make the criterion sufficiently clear. The second plea — that Janssens had been rated ‘excellent’ despite identical methodology — failed because Janssens had only received 10 out of 25 and 6 out of 10. The third plea relied on articles 68 to 71 of the Royal Decree of 8 January 1996, which concern service contracts and do not apply to this works contract; moreover, the contested ‘motivation sub-criterion’ appeared neither in the specifications nor in the decision. The Council dismissed the application and ordered Audenaert to pay the costs, set at 175 euros.
Why does this matter?
The judgment shows how a contracting authority keeps a quality-based award standing before the Council of State: not with high scores or wide gaps, but with an assessment that names, per bid, what is strong and what is weak. The Region gave both bidders a mediocre score on the approach plan and even wrote of the winner that it contained ‘a great deal of general text’ that was not to the point. That candour is exactly what made the point difference defensible: an authority that names the weaknesses of both bids and then weighs them judges carefully, even if the outcome differs by only two points. Equally important is the line the Council draws between sub-criteria and explanatory elements. Specifications that list which aspects an approach plan must address do not thereby create sub-criteria whose weighting had to be published in advance; they make the criterion more transparent. Anyone alleging hidden sub-criteria must show that they were fixed beforehand and applied systematically. Finally, the judgment is a lesson in litigation: a plea based on the wrong articles (the rules for services in a works case) that attacks a ‘sub-criterion’ which exists nowhere is lost from the outset. In an extreme-urgency procedure, where since the Act of 23 December 2009 only the seriousness of the pleas counts, there is no room for carelessness.
The lesson
For bidders: the lowest price is no entitlement to the contract when the specifications allocate 35 of 100 points to quality. Write an approach plan tailored to the actual works — the award report literally reproached Audenaert for copying the specifications and omitting examples, and for the Council that reproach is a valid ground. If you want to challenge a score difference, rebut the negative findings about your bid point by point or show which positive elements were ignored; asserting that both bids use ‘the same methodology’ is not enough. And check that the articles you invoke apply to your type of contract. For contracting authorities: substantiate qualitative criteria per bid with concrete, verifiable findings and be critical of the winner too — a reasoned small difference holds up better than an unreasoned large one. List in the specifications the aspects on which an approach plan will be assessed; that is not a hidden sub-criterion but a required clarification, as long as you do not apply them as a pre-weighted scoring grid without publishing it.
Ask yourself
Is your approach plan written for this specific contract, with your own examples, or have you mostly paraphrased the specifications? Do your statements on subcontracting match what appears elsewhere in your bid, such as your price justification? If you contest a score, can you concretely rebut every negative finding in the award report? Do you know that a list of assessment aspects in the specifications does not automatically amount to sub-criteria whose weighting had to be published? Have you checked whether the rules you invoke apply to works, supplies or services? And as a contracting authority: does your award report name both the strengths and the weaknesses of each bid, including the winner’s?
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 →