Announced site visits skipped and scores left unexplained: the Council of State suspends Iris-Achats’ hospital-software award
Because the purchasing association Iris-Achats did not carry out the site visits to reference hospitals announced in the specifications and justified the score differences between the tenders only with laconic ‘strengths’ and ‘weaknesses’, the Council of State suspended, under extreme urgency, the award to CIGES of the contract for computerised patient-record software for the Saint-Pierre and Brugmann university hospitals and the Queen Fabiola children’s hospital.
What happened?
The Iris-Achats association launched an open call for tenders for a public supply contract: software for the computerised management of the patient record for the Saint-Pierre and Brugmann university hospitals and the Queen Fabiola university children’s hospital. The contract notice was published in the Bulletin of Awards on 29 October 2012 and in the Official Journal of the European Union on 3 November 2012. The special specifications (AOG/IA/10-2012/LODOSPATI) stated, under point II.10, that the evaluation of tenders would be based, among other things, on ‘the visit to one or more sites where a similar configuration is operational, from a list of references’. By the deadline of 21 December 2012, four companies submitted an offer: POLYMEDIS, CIGES, MIMS and MEDASYS. On 16 January 2013, Iris-Achats asked all tenderers for a demonstration based on a scenario to be configured; it was organised in the first half of February, and for MEDASYS on 20 February 2013. An analysis report of 28 March 2013 concluded that CIGES had submitted the regular, economically most advantageous tender, and on 19 April 2013 Iris-Achats awarded the contract to CIGES. MEDASYS finished fourth with 59.04 points; the winning tender scored 27.99 points more in total. MEDASYS lodged an extreme-urgency action on 6 May 2013, within the fifteen-day period after notification (article 65/23, § 3 of the Act of 24 December 1993), so extreme urgency was sufficiently established. The Council found two pleas serious. On the second plea, it held that the site visits had been expressly announced as an evaluation method, that Iris-Achats had reserved no power to depart from it and that the obligation of transparency required compliance with that announced method; a demonstration based on a scenario to be configured could not, prima facie, replace the site visits, and the administrative burden invoked did not suffice as justification. On the third plea, the Council held that the analysis of the tenders for criteria no. 2 (Functional), no. 3 (Ergonomics), no. 4 (Project), no. 5 (Technical), no. 6 (After-sales/Maintenance) and no. 7 (Resources) rested only on laconically worded ‘strengths’ and ‘weaknesses’, without any weighting by importance, so that the score differences between the tenderers could not be understood — a breach of articles 65/4 and 65/5 of the Act of 24 December 1993 and articles 2 and 3 of the Act of 29 July 1991. The tenders of POLYMEDIS, CIGES, MIMS and MEDASYS remained confidential at this stage (article 65/26). In the balancing of interests, it did not appear that the disadvantages of the suspension outweighed its advantages. The Council suspended the award decision of 19 April 2013, ordered the immediate execution of the judgment and reserved the costs.
Why does this matter?
A contracting authority is bound by the evaluation method it itself announces in the specifications. If you announce site visits as a means of assessment, you must carry them out; simply replacing them with a demonstration breaches transparency and equal treatment, and administrative burden is no valid reason for it. The judgment also sets the bar for formal motivation: justifying an award with mere ‘strengths’ and ‘weaknesses’, without any weighting or visible link to the scores awarded, is not enough. The unsuccessful tenderer must be able to understand from the motivation why its points per criterion differ from those of the winner. At the same time, the Council qualifies: technical jargon — here IT terminology — is not in itself a defect, since the tenderers are supposed to understand it, and the authority need not give ‘the reasons for its reasons’. But that does not release it from the duty to make the relative characteristics and advantages of the chosen tender traceable.
The lesson
For authorities: include in the specifications only evaluation methods you will actually apply, and do not adjust them along the way; if you want to be able to deviate, provide for that expressly. Motivate each award criterion so that the score differences are traceable — a list of strengths and weaknesses without weight is insufficient, even if you use correct jargon. For tenderers: check whether the announced assessment method (site visits, demos, reference checks) was actually followed, and whether the scores in the award decision can be traced back to concrete, weighted findings. If not, you have a serious plea — but watch the extreme-urgency deadline of fifteen days after notification.
Ask yourself
As an authority: did you actually apply every evaluation method announced in the specifications (site visit, demonstration, reference check), or did you expressly reserve the right to deviate from it? Can an unsuccessful tenderer understand from your award decision why its points per criterion differ from those of the winner, or are there only laconic strengths and weaknesses without weighting? As a tenderer: was the assessment method from the specifications truly followed, and can the scores awarded be traced back to concrete, weighted findings? Do you know that an extreme-urgency suspension against an award must be lodged within fifteen days of notification (article 65/23, § 3 of the Act of 24 December 1993)?
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 →