Scores to three decimal places, but not a word on how: the Council of State suspends the MIVB's bus contract award to EvoBus
When VDL Bus Roeselare found that its bid for standard and articulated buses to Brussels transit operator MIVB scored inconsistently on identical technical features across two lots, with the award decision revealing no numerical scoring method at all, the Council of State suspended the award to EvoBus Belgium for inadequate substantive reasoning.
What happened?
Brussels transit operator MIVB tendered a supply contract for standard and articulated buses, split into two lots (specifications AB-2012). On 25 June 2013 MIVB decided to award both lots to EvoBus Belgium NV, notifying VDL Bus Roeselare by registered letter on 26 June 2013. VDL sought suspension under extreme urgency, arguing among other things that the reasoning behind the decision gave it no way to check how its own bid and EvoBus's bid had actually been assessed. The award decision listed scores to three decimal places for the 'commercial and organisational quality' and 'technical quality' criteria without saying anything about the scoring method used — a method that, incidentally, had never been announced in the specifications either. For lot 2 (18-metre articulated buses), VDL's bid received the best score of all bidders on the 'passengers' and 'driver' sub-criteria (24.697 and 10.510 points), while the same bid, on those identical technical features, received the second-worst score for lot 1 (12-metre standard buses) (14.514 and 8.320). For 'environment' and 'operator' the pattern reversed: the worst scores for lot 2, the best for lot 1 — even though both VDL bus types shared exactly the same drivetrain and engine. The administrative file showed that, before the bids were opened, MIVB had deposited a detailed scoring matrix with its company lawyer, containing scores for every criterion, sub-criterion and sub-sub-criterion in the specifications, recalculated through a weighting system that was never disclosed to bidders. For some sub-criteria the best bidder received 100% of the points and the weakest 0%; for others, meeting the minimum set in the specifications earned 50%. That methodology was explained nowhere in the award decision, and the underlying sub-scores for commercial and technical quality were not disclosed either. The Council of State held that this amounted to a failure of substantive reasoning under articles 65/4 and 65/5, 7° of the Law of 24 December 1993: a rejected bidder must be able to tell from the reasoning why the winning bid was preferred, and that was not the case here — VDL could guess what had been assessed, but not what score was achieved on each component, nor how that score was reached. That VDL was given the matrix with its own scores only after filing its application did not cure that defect: the reasoning must exist before a bidder has to consider a legal remedy, not after. The Council therefore suspended execution of the award to EvoBus Belgium for both lots; the part of the claim directed against the implicit refusal to award the contract to VDL itself was dismissed, since VDL had not shown why that exceptional annulment technique should apply here.
Why does this matter?
This judgment is one of the clearest illustrations of what the substantive duty to state reasons actually requires in award decisions: it is not enough to hand out a score — the authority must also show how that score was arrived at, especially when a hidden, weighted scoring matrix that was never announced in the specifications is used. VDL's contradictory scores for identical technical features across two lots are the clearest possible proof of why that transparency matters: without insight into the methodology, nobody — not VDL, not the Council of State — could tell whether the inconsistency was an explainable assessment choice or a mistake. The judgment also confirms an important procedural point: an authority cannot cure a reasoning defect by disclosing the missing scores only after the rejected bidder has already gone to court. The reasoning must exist at the moment the award decision is notified, not as a reaction to litigation.
The lesson
If, as a contracting authority, you build a detailed scoring matrix with weightings across sub-criteria and sub-sub-criteria, announce that methodology in the specifications and include the sub-scores actually achieved in the reasoned award decision itself — not only once a rejected bidder asks or files a case. As a bidder who receives inconsistent or unexplainable scores on identical technical features across lots, treat that as a strong signal to scrutinise the reasoning closely: can you, based on what was disclosed, actually trace why your bid scored lower than the winner's? If not, you may well have a serious ground for a suspension claim.
Ask yourself
As a contracting authority, does your award decision disclose only final scores, or also the sub-scores and the assessment method used for each sub-criterion? Was that method announced in the specifications beforehand? As a bidder, can you, based solely on the reasoning you received, reconstruct why the winning bid scored better than yours on every criterion — or would you have to guess at a matrix you never saw? And do you notice contradictory scores for identical technical features across different lots?
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 →